Emily Powell, Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole, 52 U. Rich. L. Rev. Online 83 (2018).
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Emily Powell *
Reynolds Wintersmith was just twenty years old when he learned he may spend the rest of his life in prison. In 1994, he was sentenced to life without the possibility of parole for a nonviolent drug crime. It was his first conviction.
When United States District Judge Philip Reinhard was sentencing Reynolds, he struggled with the mandatory minimum requirements:
Under the federal law I have no discretion in my sentencing. Usually a life sentence is imposed in state courts when somebody has been killed or severely hurt, or you got a recidivist . . . . [T]his is your first conviction, and here you face life imprisonment . . . . [I]t gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life.
This comment contends that Reynolds Wintersmith belonged to a class of offenders who should be categorically exempt from sentences of life imprisonment without the possibility of parole. Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.
The United States Supreme Court has categorically exempted classes of offenders from punishment before. In Roper v. Simmons, the Court held that sentencing juveniles to death violated the Eighth Amendment’s ban on cruel and unusual punishment. The Court also held in Graham v. Florida that juveniles were categorically exempted from life imprisonment without the possibility of parole for non-homicide offenses. In coming to these decisions, the Court has given the same two reasons for categorically banning particular sentences for classes of offenders: (1) a national consensus has formed against the sentence for the class of offenders, and (2) the sentence is disproportionate to the culpability of the class of offenders.
This comment argues that eighteen- to twenty-year-olds should be categorically spared from life without parole for these same two reasons. First, sentencing data suggests only a small portion of those sentenced to life without parole were between eighteen and twenty years old at the time of their crimes. This low rate illustrates that the country appears to oppose sentencing eighteen- to twenty-year-olds to prison for the rest of their lives without any opportunities for release. Second, sentencing eighteen- to twenty-year-olds to life without parole is a disproportionate punishment because scientific research shows that this class of individuals shares the same mitigating characteristics as juvenile offenders. These characteristics diminish culpability and thus make life without parole a disproportionate sentence for these offenders.
Part I of this comment describes the legal foundation for establishing categorical sentencing exemptions for classes of offenders, discussing the Supreme Court’s decisions in Roper, Graham, and Miller v. Alabama. Part II outlines the behavioral, psychological, and neurological research surrounding the culpability of eighteen- to twenty-year-olds, arguing that there is scientific confirmation that eighteen- to twenty-year-olds’ brains are similar to those of juveniles. Part III applies the Court’s categorical exemption test and concludes that eighteen- to twenty-year-olds should be exempt from life without parole. In the end, eighteen- to twenty-year-olds have more to offer the world in the long lives they have ahead of them.
I. The Supreme Court’s Categorical Exemption Jurisprudence
The Supreme Court created a test to categorically exempt offenders from sentences, and has applied this test to the death penalty with regard to mentally disabled offenders and defendants under eighteen years of age at the time of their crimes. The Court has also applied the test to life without parole for non-homicide juvenile offenders. While the Court held it is unconstitutional to sentence juveniles to mandatory life without parole in homicide cases, it bypassed the categorical exemption test because it was not necessary to decide the case in question. This part discusses the Court’s categorical exemption test and the relevant cases in which it has been implemented.
A. Atkins and Roper: The Supreme Court’s Two-Part Categorical Exemption Test
In 2002, the Supreme Court held in Atkins v. Virginia that the execution of defendants with mental disabilities violated the Eighth Amendment. To support its holding, it engaged in a two-part analysis. First, the Court recognized that numerous states were no longer executing those with mental disabilities, and “even in those [s]tates that allow the execution of mentally [disabled] offenders, the practice is uncommon.” The Court found that because the practice had become so unusual, “a national consensus [had] developed against it.”
Second, the Court engaged in an independent proportionality inquiry and held that executing those with mental disabilities “will [not] measurably advance the deterrent or the retributive purpose of the death penalty.” The Court recognized that those with mental disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” People with mental disabilities are less likely to be deterred by capital punishment because of “their disabilities in areas of reasoning, judgment, and control of their impulses.” Therefore, the Court found capital punishment was “excessive” after “[c]onstruing and applying the Eighth Amendment in the light of our ‘evolving standards of decency.’”
Three years later, in Roper v. Simmons, the Court held that the execution of defendants younger than eighteen years of age at the time of their crimes violated the Eighth Amendment. In reaching its decision, the Court engaged in its two-part analysis from Atkins. It held that a national consensus had formed in opposition to executing juveniles, which was evidence that society views juveniles as “categorically less culpable than the average criminal.”
The Court then engaged in its independent proportionality inquiry and held the death penalty was an excessive punishment for juveniles under the Eighth Amendment. The Court reasoned that “[c]apital punishment must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’” It reasoned that juveniles cannot be classified among the worst of offenders because they differ from adults in three meaningful ways: (1) they lack maturity and a developed sense of responsibility; (2) they are “susceptible to negative influences and outside pressures, including peer pressure;” and (3) their character is not as well-formed. The Court concluded these characteristics diminished culpability, and the two clear social purposes served by the death penalty—retribution and deterrence—were therefore not as adequate of justifications with regard to juveniles as they are with adults.
While the Court acknowledged that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” it decided that a bright line needed to be drawn. After recognizing that logic previously used to exclude offenders under age sixteen from the death penalty could be extended to those under eighteen, the Court concluded that because eighteen years of age was “where society draws the line for many purposes between childhood and adulthood,” this is also where “the line for death eligibility ought to rest.” As the risk of executing juvenile offenders with diminished culpability could not be remedied by an individualized sentencing regime, offenders under eighteen years old are categorically exempt from the death penalty.
B. Graham: Analyzing Actual Sentencing Practices to Find a National Consensus Against a Punishment
While Atkins and Roper provided the two-part categorical exemption test, Graham clarified the first prong of the test in 2010. In Graham, the Court applied the two-part test and held that juveniles were categorically exempted from life without parole for non-homicide offenses. It found that a national consensus existed against this punishment even though the majority of states permitted it. After considering the practices of states where the sentence was permitted, the Court found the punishment was rarely utilized. For this reason, “an examination of actual sentencing practices . . . discloses a consensus against its use.” The Court went on to note that only one state imposed the “significant majority” of the sentences, and only ten states imposed the remainder. Graham therefore clarified that a national consensus against a practice can be established by the mere infrequency of the particular sentence.
When applying the second prong of the categorical exemption test, the Court held that life without parole is a violation of the Eighth Amendment when imposed on juvenile offenders for non-homicide offenses for three reasons: (1) the offender’s lessened culpability; (2) the severity of life without parole; and (3) the lack of any legitimate penological justification—such as retribution, deterrence, incapacitation, or rehabilitation—to justify the sentence.
For the first concern, the Court reiterated the same three mitigating characteristics outlined in Roper. It also emphasized that “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” The Court continued to recognize that “because juveniles have lessened culpability they are less deserving of the most severe punishments.” Furthermore, the Court pointed out that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,” including that “parts of the brain involved in behavior control continue to mature through late adolescence.”
When discussing its second concern—the severity of life without parole—the Court noted the sentence shares characteristics with the death penalty that other sentences do not. For instance, the Court recognized the only hope offenders have in the restoration of their most basic liberties is the remote chance of executive clemency, “which does not mitigate the harshness of the sentence.” Furthermore, the Court emphasized the importance of time when it reasoned that after imposition of this sentence, “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.” Therefore, imposing life without parole on juvenile offenders was especially severe.
Finally, the Court examined four penological justifications for sentencing juveniles to life without parole for non-homicide offenses and found that none of them adequately justified the sentence. The Court ruled out (1) retribution because of juvenile offenders’ lessened culpability, (2) deterrence because of juveniles’ impulsiveness, (3) incapacitation because of their capacity for change, and (4) rehabilitation because the sentence itself is contradictory to the rehabilitative ideal. Due to the lack of legitimate justification for sentencing juveniles to life without parole for non-homicide offenses, the Court held the sentence was disproportionate and therefore violated the Eighth Amendment.
C. Miller: Bypassing the Categorical Exemption Test
The Supreme Court continued to rely on juvenile development as a justification for exempting categories of juvenile offenders when it decided Miller v. Alabama in 2012. The Court held it is unconstitutional to sentence juveniles to mandatory life without parole for homicide cases because mandatory sentencing schemes do not allow judges or juries to consider the characteristics of youth as mitigating factors. According to the Court, this mandatory sentencing scheme posed “too great a risk of disproportionate punishment” because it made “youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence.”
The Court did not rely on the two-part categorical exemption test in its holding. Rather, it combined its reasoning in Roper and Graham regarding juvenile culpability with precedent requiring individualized sentencing when imposing capital punishment. The Court noted that life without parole should be treated similarly to capital punishment when the offenders are juveniles because it is such a severe sentence. Therefore, because youth is significant in sentencing, the Court held that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”
II. Scientific Findings Surrounding the Culpability of Young Adults
This Part outlines the behavioral, psychological, and neurological research surrounding the culpability of eighteen- to twenty-year-olds. As it will show, eighteen- to twenty-year-olds’ brains are similar to those of juveniles. Therefore, they should be viewed similarly to adolescents in terms of culpability due to the seriousness of life without parole.
A. Behavioral and Psychological Research
Behavioral and psychological research reveal eighteen- to twenty-year-olds are more similar to adolescents than older adults. For example, research shows impulsiveness increases until early adulthood and subsequently declines. Eighteen- to twenty-year-olds score lower than older adults on a test measuring the anticipation of consequences, and those under twenty-one years of age are more likely to engage in risky behavior and less likely to be sensitive to negative consequences than those between twenty-two and thirty years of age. One study showed college-aged adults had a lesser ability to evaluate a situation before acting when compared to older adults, but there was no statistically significant difference in this ability when college-aged adults were compared to adolescents. In regards to delinquency, there was no statistically significant difference in rates of offenses between college-aged adults and adolescents, but there was a difference between college-aged adults and older adults. Furthermore, eighteen- to twenty-one-year-olds were more similar to ten- to seventeen-year-olds in a study measuring psychosocial maturity than they were to those who were at least twenty-six years old.
Research suggests eighteen- to twenty-year-olds are also highly susceptible to peer pressure. One study of 380 eighteen- to twenty-five-year-olds, with a mean age of twenty, found that “antisocial peer pressure was a highly significant (p < 0.001) predictor of reckless substance use and total recklessness . . . [and] . . . a more marginally significant (p < 0.05) predictor of reckless driving and sexual behaviors.” This indicates that “the reputedly ‘adolescent’ characteristic of peer pressure towards antisocial behavior continues to have an important influence into emerging adulthood” and thus “[p]eer pressure would . . . appear to be a suitable target for intervention for all youth, at least until the early-twenties age group.”
B. Neurological Research
Neurological research also highlights how eighteen- to twenty-year-olds differ from older adults. Research has shown that human brains are not fully mature until at least the age of twenty-five. It has been recognized that “college-aged individuals may have yet to fully develop neurologically . . . and thus may not be equipped for mature judgment,” and that “[h]igher-order executive function, emotional regulation, and impulse control also improve through the mid-twenties.”
The prefrontal cortex, which is the area of the brain “associated with voluntary behavior control and inhibition such as risk assessment, evaluation of reward and punishment, and impulse control,” is “one of the last brain regions to mature.” Eighteen- to twenty-year-olds’ prefrontal cortexes are undeveloped in two ways. First, the gray matter of the brain has not fully matured until after age twenty. Through a process called pruning, gray matter decreases as the brain matures. Pruning is a process that enhances overall brain function because it “leads to greater efficiency of neural processing and strengthens the brain’s ability to reason and consistently exercise good judgment.” The prefrontal cortex is “one of the last regions where pruning is complete and this region continues to thin past adolescence.” Therefore, “one of the last areas of the brain to reach full maturity . . . is the region most closely associated with . . . the ability to reliably and voluntarily control behavior.”
Second, the white matter of the brain does not fully mature until after age twenty. White matter facilitates communication between different parts of the brain in a fast and reliable manner. According to the American Medical Association, “resistance to peer influence . . . may be linked to the development of greater connectivity between brain regions,” and “the development of improved self-regulatory abilities during and after adolescence is positively correlated with white matter maturation through the process of myelination.”
The underdevelopment of gray and white matter also impacts the brain’s reward system, which makes eighteen- to twenty-year-olds more susceptible to outside pressures than older adults. According to one neuroscientist, “[t]he brain’s reward system becomes highly active right around the time of puberty and then gradually goes back to an adult level, which it reaches around age 25.” Due to these changes, “young adults become much more sensitive to peer pressure than they were earlier or will be as adults. . . . [A] 20 year old is 50 percent more likely to do something risky if two friends are watching than if he’s alone.” This neurological research, in addition to the behavioral and psychological research discussed above, supports the conclusion that eighteen- to twenty-year-olds lack the culpability for their crimes necessary to sentence them to life without parole.
III. Application of the Court’s Two-Part Categorical Exemption Test
This Part argues that the categorical exemption test should be extended to eighteen- to twenty-year-olds for life without parole. If there is a national consensus against this sentencing practice, and if such a sentence is disproportionate to the culpability of this class of offenders, then the Court should hold that the Eighth Amendment categorically bans the sentencing of eighteen- to twenty-year-olds to life without parole. Applying the Court’s categorical exemption test leads to the conclusion that eighteen- to twenty-year-olds should be excluded from life without parole sentences.
A. Part One: There is a National Consensus Against Sentencing Eighteen- to Twenty-Year-Olds to Life Without Parole
The first part of the Court’s categorical exemption analysis requires determining whether a national consensus against the sentencing practice exists. In doing so, the Court first considers “objective indicia of society’s standards, as expressed in legislative enactments and state practice.” However, the Court has recognized “actual sentencing practices” are also integral when inquiring into national consensus. A review of sentencing practices suggest there is a national consensus opposed to sentencing eighteen- to twenty-year-olds to life without parole.
Few statistics exist on the subject, but it is clear the imposition of life imprisonment in the federal criminal justice system is rare, regardless of age. In 2013, only 153 offenders were sentenced to life imprisonment in the federal system. There are at least 45 federal statutes requiring life imprisonment as a minimum sentence, and 69 of those 153 offenders were subject to this mandatory minimum. Of the remaining 84 cases, 79.8% were subjected to guidelines where a life sentence was the only term of imprisonment provided. The United States Sentencing Commission (the “Commission”) specifically provides for life imprisonment in only four of the over 150 guidelines in the Commission’s Guidelines Manual. Even though life imprisonment is possible at the high end of sentencing ranges for other offenses, life sentences “generally occur only in cases where multiple sentencing enhancements in the guidelines had applied and where the offender had a significant prior criminal record.” As of January 2015, there were 4436 federal prisoners serving life sentences, which is only 2.5% of the offenders in the Federal Bureau of Prisons’ system.
Statistics specifically involving eighteen- to twenty-year-olds suggest that sentencing this class of offenders to life without parole is uncommon. The ages of the 153 federal offenders sentenced to life imprisonment in 2013 ranged between twenty- and eighty-years-old, with an average age of thirty-seven. This means that of the few people sentenced to life in prison in federal court, no eighteen- or nineteen-year-olds were sentenced to federal life imprisonment in 2013.
Even studies broadly examining the ages of offenders suggest that young adults are rarely sentenced to life without parole. A Bureau of Justice Statistics study concluded that in 2013, only one percent of eighteen- to thirty-nine-year-olds were sentenced to life, life without parole, life plus additional years, or death. While this study examined an extremely large age bracket that included four different types of sentences, this data supports the notion that there is a national consensus against sentencing eighteen- to twenty-year-olds to life without parole. If only one percent of offenders in an age bracket spanning twenty-one years was sentenced to the harshest punishments in the criminal justice system, then it is likely that only a tiny portion of this already small statistic was between eighteen and twenty years old when they were sentenced to life without parole in 2013.
Reading these Bureau of Justice statistics alongside a smaller, sentence-specific study further supports the idea that there is a national consensus against this sentencing practice. Out of 355 prisoners ranging from eighteen to fifty-seven years old at the time of arrest, who were sentenced to life without parole for nonviolent offenses, only 5.4% were twenty years old or younger. If the American Civil Liberties Union’s data is an accurate reflection of the entire prison population serving life without parole sentences for nonviolent crimes, then only roughly 5.4% of these prisoners were between eighteen and twenty years old when they committed their crimes.
While sentencing eighteen- to twenty-year-olds to life without parole is not statutorily barred, “those sentences are most infrequent” according to the few statistics that exist. The Graham Court concluded there was a national consensus against imposing life without parole on juvenile nonviolent offenders because the sentence was so rare, despite the numerous opportunities to administer it. Similarly, the infrequency of sentencing eighteen- to twenty-year-olds to life without parole does not stem from a lack of opportunity, as this age group is statistically the most violent. The top four individual age groups arrested for murder and non-negligent manslaughter in 2010 were nineteen-year-olds, eighteen-year-olds, twenty-one-year-olds, and twenty-year-olds, respectively. While eighteen- to twenty-year-olds—along with twenty-one-year-olds—are statistically the most violent, only one percent of eighteen- to thirty-nine-year-olds were sentenced to life, life without parole, life plus years, or death in 2013.
Even though sentencing this class of offenders to life without parole is rare, so long as it is legally permissible, there is an intolerable risk of sentencing an eighteen- to twenty-year-old to life without parole when he or she lacks the culpability to deserve such an extreme sentence. While the statistics cited above are not conclusive, they facially satisfy the first of the Court’s two necessary conditions for categorical exemption because there appears to be a national consensus against sentencing eighteen- to twenty-year-olds to life without parole.
B. Part Two: Life Without Parole is a Disproportionate Punishment for Eighteen- to Twenty-Year-Olds
The second prong of the Court’s categorical exemption test requires determining whether sentencing eighteen- to twenty-year-olds to life without parole violates the Eighth Amendment. This analysis requires “consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question” and whether the practice serves legitimate penological goals. Using the Court’s logic, sentencing eighteen- to twenty-year-olds to life without parole is a disproportionate punishment, regardless of the crime, and the three mitigating characteristics recognized of juveniles negate the penological justifications for sentencing eighteen- to twenty-year-olds to life without parole.
- The Lack of Culpability of Eighteen- to Twenty-Year-Olds
As discussed above, eighteen- to twenty-year-olds are similar to juveniles in that they are prone to risky behavior and susceptible to negative outside influences. According to the Court, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” However, the mitigating qualities the Court was referring to have not yet subsided by age eighteen, and even the Court has recognized this. The Court has also acknowledged that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” For this same reason, the criminal justice system should not hold psychologically and neurologically immature eighteen- to twenty-year-olds to the same standard of culpability as thirty-year-olds.
- The Severity of Life Without Parole
The Court recognized that “life without parole is ‘the second most severe penalty permitted by law.’” Life without parole “deprives the convict of the most basic liberties without giving hope of restoration.” It stands for a “denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.” The Court acknowledged that life without parole is an especially severe punishment for juveniles because “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.”
Similarly, an eighteen- to twenty-year-old and a seventy-five-year-old would receive the same punishment in name only. There is little difference between sixteen years of age and twenty years of age when one is framing the discussion around the years of life ahead of them. Eighteen- to twenty-year-olds still have numerous years and a greater percentage of their lives ahead of them than older offenders. For this reason, life without parole is equally severe for eighteen- to twenty-year-olds as it is for juveniles.
- The Inadequacy of Penological Justifications for Life Without Parole
The Court has considered each traditional penological justification and held that they are inadequate to support sentencing juvenile non-homicide offenders to life without parole. The Court’s reasoning for each penological justification applies to eighteen- to twenty-year-olds. The first justification, retribution, is “an attempt to express the community’s moral outrage or . . . an attempt to right the balance for the wrong to the victim.” However, while retribution is a legitimate penological justification for punishment, “‘[t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.’” Behavioral, psychological, and neurological research indicate eighteen- to twenty-year-olds are more similar to juveniles than to older adults in regards to traits that influence culpability, including risk-taking, temperance, and susceptibility to peer pressure. Just as “retribution does not justify imposing the second most severe penalty on the less culpable juvenile nonhomicide offender,” it does not justify imposing this sentence on eighteen- to twenty-year-olds who lack the culpability of older adults.
The second justification, deterrence, should also be discounted. The Graham Court noted that “‘the same characteristics that render juveniles less culpable than adults suggest . . . that juveniles will be less susceptible to deterrence.’” Similarly, eighteen- to twenty-year-olds are less likely to be deterred because they lack culpability. They lack the ability to anticipate future consequences, have lower levels of temperance, and are more likely to engage in risky behavior.
Third, incapacitation does not justify sentencing eighteen- to twenty-year-olds to life without parole. Just as “[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity,” it also disregards eighteen- to twenty-year-olds. The neurological processes that lead to the maturation of the brain have not yet matured by eighteen years old, and “[h]igher-order executive function, emotional regulation, and impulse control . . . improve through the mid-twenties.” Life without parole sentences impair eighteen- to twenty-year-olds’ abilities to demonstrate they will not be risks to society for the rest of their lives.
The fourth and final justification, rehabilitation, was discounted by the Court because “[t]he penalty forswears altogether the rehabilitative ideal.” Denying an eighteen- to twenty-year-old’s “right to reenter the community . . . makes an irrecoverable judgment about that person’s value and place in society.” As discussed above, these offenders’ brains still need time to mature. Life without parole assumes eighteen- to twenty-year olds are irredeemable, and therefore does not give them the chance to reenter society and prove they are rehabilitated. Consequently, following the Court’s proportionality analysis in Graham, there is no penological theory that justifies life without parole for eighteen- to twenty-year-olds.
- The Risks of Discretionary Life Without Parole
The Court has also addressed individualized sentencing of juveniles. The Graham Court held that “‘[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive’ a sentence of life without parole for a nonhomicide crime ‘despite insufficient culpability.’” Similarly, the psychological and neurological predispositions of eighteen- to twenty-year-olds are too well known to ignore. There is too great a risk that “the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the . . . offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe” than life without parole. Due to these risks, individualized sentencing is insufficient for a class of individuals who lack the culpability to warrant such a harsh sentence. The Court should go as far as holding that life without parole is a disproportionate sentence for eighteen- to twenty-year-olds under the Eighth Amendment.
Reynolds Wintersmith did not think he would die in prison, but rather thought his sentence was so unjust that it would inevitably be corrected. He decided to take the advice of a fellow inmate: “You can do prison two ways. You can come here and die mentally or physically—you can make it your graveyard. Or, you can use it as a school and you can learn things that you could never learn anywhere else that will help you better your life.” While Reynolds was incarcerated, he completed a 4100-hour teaching apprenticeship program in order to gain the necessary qualifications to teach. He also counseled fellow inmates who struggled emotionally with their incarceration. Even though he was sentenced to life without parole, he led a re-entry program that helped inmates prepare for their release from prison.
President Obama commuted Reynolds’s sentence on December 19, 2013, and Reynolds was released on April 17, 2014. He had served more than twenty years of his life sentence for a nonviolent crime. Now, Reynolds has found a career as a counselor at an alternative Chicago high school. He counsels students who face significant barriers, such as working, paying rent, and raising children, while trying to finish high school.
Reynolds is a success story. A mandatory sentence wrote Reynolds off as irredeemable without giving him the chance to show he would not always be a risk to society. He is able to prove himself now that he is free, but there are others still in prison who, under the current doctrine, will never get the chance to redeem themselves. The current doctrine does not reflect the value of rehabilitating offenders so they can once again be productive members of society. If offenders are imprisoned for lacking the requisite culpability for one of the harshest sentences available, the public could lose faith in the legitimacy of the criminal justice system.
The Supreme Court should interpret the Eighth Amendment to categorically exempt eighteen- to twenty-year-olds from life without parole. While the statistics addressed in this comment were not conclusive, they did suggest there is a national consensus against sentencing eighteen- to twenty-year-olds to life without parole. Furthermore, behavioral, psychological, and neurological research indicate eighteen- to twenty-year-olds lack the requisite culpability to be sentenced to such an extreme punishment. The Court should therefore apply its categorical exemption test and hold that the Eighth Amendment categorically bans the imposition of life without parole on eighteen- to twenty-year-old offenders.
* J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2015, University of Virginia. I wish to express my sincere gratitude to Professors Mary Kelly Tate and Corinna Barrett Lain for their guidance and expertise. I would also like to thank the University of Richmond Law Review staff and editors for their assistance in preparing this comment for publication. I also wish to thank my parents, Michael and Kathleen Powell, for their unconditional love and support. Finally, I wish to convey appreciation for my fiancé, Chris Plavcan, for his unending love and encouragement; without him, I would still be without a title for this piece.
. Reynolds Wintersmith, FAMM, http://famm.org/reynolds-wintersmith/ (last visited Mar. 1, 2018) [hereinafter FAMM].
. Id. Reynolds’s involvement with drugs was unsurprising, given his childhood. As a child, Reynolds was surrounded by drugs. John Kuhn, From the War on Drugs, a Story of Redemption, Chi. Rep. (Aug. 19, 2014), http://chicagoreporter.com/war-drugs-story-redemp tion/. When he was eleven years old, he watched his mother die of a heroin overdose. Id. After her death, he lived with his drug-dealing grandmother and was constantly amid gang violence. Id.; Annie Sweeney, Year After Obama-Ordered Prison Release, Ex-Drug Dealer Finds Career, Chi. Trib. (Jan. 1, 2015), http://chicagotribune.com/news/ct-life-after-prison-met-20141229-story.html. After his grandmother was sent to prison, Reynolds began to sell drugs to provide for his younger siblings when he was seventeen years old. Kuhn, supra; Sweeney, supra. It was not long before the adults in the gang brought him further into the drug ring as a leader. Kuhn, supra; FAMM, supra note 1. He was arrested when he was nineteen years old and convicted on four counts as part of a conspiracy to possess crack cocaine with intent to distribute. Am. Civil Liberties Union, A Living Death: Life Without Parole for Nonviolent Offenses 67 (2013), https://www.aclu.org/files/assets /111813-lwop-complete-report.pdf; Kuhn, supra.
. Kuhn, supra note 3. To calculate his sentence, Reynolds’s crimes were run through a formula that considered several factors, which resulted in a sentence of life plus forty years in federal prison. Id. Reynolds was effectively sentenced to life without parole because the federal government abolished parole in the 1980s. See infra note 107.
. FAMM, supra note 1.
. See, e.g., Graham v. Florida, 560 U.S. 48, 74 (2010); Roper v. Simmons, 543 U.S. 551, 578 (2005).
. See Roper, 543 U.S. at 578.
. Graham, 560 U.S. at 74–75.
. See id. at 60–61; Roper, 543 U.S. at 564–68.
. Though beyond the scope of this comment, this class of offenders should also be categorically spared from the death penalty. See generally Andrew Michaels, A Decent Proposal: Exempting Eighteen- to Twenty-Year-Olds From the Death Penalty, 40 N.Y.U. L. & Soc. Change 139 (2016).
. See Am. Civil Liberties Union, supra note 3, at 26 tbl.7; E. Ann Carson & William J. Sabol, U.S. Dep’t of Justice, Aging of the State Prison Population, 1993–2013, at 21 tbl.15 (2016) (basing data on prisoners sentenced to more than one year in state prison on new court commitments).
. See, e.g., Jeffrey Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Rev. 339, 343 (1992) [hereinafter Arnett, Reckless Behavior] (reckless behavior); Graham Bradley & Karen Wildman, Psychosocial Predictors of Emerging Adults’ Risk and Reckless Behaviors, 31 J. Youth & Adolescence 253, 253–54, 263 (2002) (peer pressure).
. Roper, 543 U.S. 551.
. Graham, 560 U.S. 48.
. Miller v. Alabama, 567 U.S. 460 (2012).
. While exempting twenty-four- and twenty-five-year-olds from life without parole would be ideal, this paper posits that our country is much more likely to accept the categorical exemption of eighteen- to twenty-year-olds than of eighteen- to twenty-five-year-olds. Twenty-one years of age is already a culturally significant marker of maturity. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. § 922(b)(1), (c)(1) (2012)) (prohibiting anyone under twenty-one years of age from purchasing handguns from Federal Firearms Licensees); National Minimum Drinking Age Act of 1984, Pub. L. No. 98-363, 98 Stat. 437 (codified at 23 U.S.C. § 158 (2012)) (prohibiting anyone under twenty-one years of age from purchasing alcohol); Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, § 201, 122 Stat. 3949 (2008) (providing states with financial incentives to extend the age of eligibility for foster care services to twenty-one years of age). Twenty-two, twenty-three, twenty-four, and twenty-five are not culturally significant ages. Until twenty-five years of age reaches the same cultural significance as twenty-one, society will likely be less willing to support the categorical exemption of twenty-one to twenty-five-year-olds.
. See, e.g., Atkins v. Virginia, 536 U.S. 304, 312–13 (2002) (describing the categorical tests).
. Id. at 321 (mentally disabled offenders); Roper, 543 U.S. at 578 (juvenile offenders).
. Graham, 560 U.S. at 74–75.
. Miller, 567 U.S. at 479.
. Atkins, 536 U.S. at 321. The Court emphasized it had repeatedly held that “it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Id. at 311 (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
. Atkins, 536 U.S. at 312–13.
. Id. at 314–16.
. Id. at 316.
. Id. at 321. The second prong of this test invokes what is known as the proportionality principle. See id. at 311 (“We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment.”).
. Id. at 306.
. Id. at 306, 319–20.
. Id. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 406 (1986)).
. Roper v. Simmons, 543 U.S. 551, 578 (2005). Roper extended the protection to sixteen- and seventeen-year-olds as the Court had already provided for those under sixteen years of age. Id. at 570–71; see Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).
. Roper, 543 U.S. at 564.
. Id. at 567–68. The Court even recognized that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Id. at 575.
. Id. at 568–75.
. Id. at 568 (quoting Atkins, 536 U.S. at 319).
. Id. at 569–70. The Court cited Arnett, Reckless Behavior, supra note 12, for the first finding; Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychol. 1009, 1014 (2003), for the second finding; and Erik H. Erikson, Identity: Youth and Crisis 26–28 (1968), for the third finding. The Court noted these differences reflected both what “any parent knows” and what scientific and sociological studies tend to confirm. Roper, 543 U.S. at 569.
. Roper, 543 U.S. at 571.
. Id. at 574.
. Thompson v. Oklahoma held that offenders under sixteen years of age could not be sentenced to the death penalty. 487 U.S. 815, 838 (1988).
. Roper, 543 U.S. at 574.
. Id. at 572–73. There is an American Psychiatric Association rule forbidding psychiatrists from diagnosing juveniles with antisocial personality disorder, otherwise known as psychopathy or sociopathy. Id. at 573 (citing Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 701–06 (4th ed. text rev. 2000)). The Court argued that “[i]f trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, . . . [s]tates should refrain from asking jurors to issue a far graver condemnation—that a juvenile offender merits the death penalty.” Id.
. Id. at 564; Atkins v. Virginia, 536 U.S. 304, 312–13 (2002).
. Graham v. Florida, 560 U.S. 48, 61–62 (2010).
. Id. at 74–75.
. Id. at 62.
. Id. at 64. Florida imposed the significant majority of sentences, and California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina, and Virginia imposed the remainder. Id. at 63–65 (citations omitted).
. See id. at 62.
. Id. at 68–69.
. Id. at 69–71.
. Id. at 71–74.
. Id. at 68 (citing Roper v. Simmons, 543 U.S. 551, 569–70 (2005)). The Court cited juveniles’ (1) “lack of maturity and . . . underdeveloped sense of responsibility”; (2) vulnerability “to negative influences and outside pressures, including peer pressure”; and (3) character being “not as well formed” as adults’ character. Id. (quoting Roper, 543 U.S. at 569–70).
. Id. at 71.
. Id. at 68 (citing Roper, 543 U.S. at 569).
. Id. (citing Brief for the American Medical Ass’n et al. as Amici Curiae in Support of Neither Party at 16–24, Graham, 560 U.S. 48 (Nos. 08-7412, 08-7621) [hereinafter Brief for the AMA]; Brief for the American Psychological Ass’n et al. as Amici Curiae Supporting Petitioners at 22–27, Graham, 560 U.S. 48 (Nos. 08-7412, 08-7621)).
. Id. at 69.
. Id. at 69–70.
. Id. at 70. The Court reasoned that “[a] 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Id. (citation omitted).
. Id. at 71–74.
. Id. at 71–72.
. Id. at 72.
. Id. at 72–73.
. Id. at 73–74.
. Id. at 74.
. See Miller v. Alabama, 567 U.S. 460, 471–73, 477, 479 (2012).
. Id. at 474. The Court reasoned that precedent had established that “children are constitutionally different from adults for purposes of sentencing.” Id. at 471.
. Id. at 479.
. See id. at 480, 482–83. Although the Court discussed “objective indicia” in regards to the first prong of the categorical exemption test, id. at 482–83, the crux of the holding relied on a line of precedent mandating individualized sentencing, id. at 483, 485 n.11.
. See id. at 470–71.
. See id. at 474.
. Id. at 489. The Court pointed out that the “distinctive (and transitory) mental traits and environmental vulnerabilities” of juveniles are not crime-specific. Id. at 473. However, the Court still limited its holding to juveniles convicted of homicide offenses. Id. at 479–80. One of the petitioners’ arguments was that the Eighth Amendment requires a categorical ban on life without parole for all juveniles, regardless of the crime, at least for those under fourteen years old. Id. at 479. The Court declined to consider the argument because it reasoned it could sufficiently decide Miller by holding that life without parole cannot be mandatory for juvenile homicide offenders. Id. at 479–80.
. This comment posits that our country is much more likely to accept the categorical exemption of eighteen- to twenty-year-olds than of eighteen- to twenty-five-year-olds. See supra note 16.
. See, e.g., Jeffrey Jensen Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psychologist 469, 469 (2000); Bradley & Wildman, supra note 12, at 253–54, 263; Kathryn L. Modecki, Addressing Gaps in the Maturity of Judgment Literature: Age Differences and Delinquency, 32 Law & Hum. Behav. 78, 85 tbl.3 (2007) (reporting a distinct difference between college-aged and older adult participants on measures of temperance).
. Steinberg & Scott, supra note 34, at 1013 (citing Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 Law & Hum. Behav. 249, 260 (1996)) (“[I]mpulsivity increases between middle adolescence and early adulthood and declines thereafter . . . .”).
. Laurence Steinberg et al., Age Differences in Future Orientation and Delay Discounting, 80 Child Dev. 28, 35 tbl.1 (2009) [hereinafter Steinberg et al., Age Differences].
. See Elizabeth Cauffman et al., Age Differences in Affective Decision Making as Indexed by Performance on the Iowa Gambling Task, 46 Developmental Psychol. 193, 203–04 (2010).
. Modecki, supra note 74, at 85 (“[O]n measures of temperance, adults were significantly more mature than young-adults, college students, and adolescents.”). While this study recognizes that young adults, who are between the ages of twenty-two and twenty-seven, scored similarly to college-aged adults, this simply reinforces the claim that full maturity, both psychological and neurological, is not attained until the mid- to late-twenties. Id. at 89 (“[E]motional temperance may continue to improve through the mid to late twenties.”).
. See id. at 86 (“[A]dults showed less delinquency than the adolescent, college student, and young-adult samples, whereas young-adults showed less delinquency than adolescents or college students.”). Modecki examined three different areas of delinquency in her research: “stealing offenses, property offenses, and assault offenses.” Id. at 84.
. See Laurence Steinberg et al., Are Adolescents Less Mature Than Adults?: Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip Flop,” 64 Am. Psychologist 583, 591 fig.3 (2009).
. See, e.g., Bradley & Wildman, supra note 12, at 263.
. Id. at 257.
. Id. at 263.
. See, e.g., Barbara L. Atwell, Rethinking the Childhood-Adult Divide: Meeting the Mental Health Needs of Emerging Adults, 25 Alb. L.J. Sci. & Tech. 1, 20 (2015) (“One way to best serve emerging adults is to recognize that their brain development continues until the age of twenty-five.”); Nico U.F. Dosenbach et al., Prediction of Individual Brain Maturity Using fMRI, 329 Sci. 1358, 1359 fig.1 (2010) (reporting that functional brain maturity levels out around twenty-five years of age); Robin Marantz Henig, What Is It About 20-Somethings?, N.Y. Times (Aug. 18, 2010), http://www.nytimes.com/2010/08/22/magazine /22Adulthood-t.html (“This new understanding comes largely from a longitudinal study of brain development sponsored by the National Institute of Mental Health, which started following nearly 5,000 children at ages 3 to 16 . . . . The scientists found the children’s brains were not fully mature until at least 25.”).
. Modecki, supra note 74, at 79.
. Vivian E. Hamilton, Immature Citizens and the State, 2010 B.Y.U. L. Rev. 1055, 1115 (2010).
. Brief for the AMA, supra note 55, at 16–18 (citations omitted).
. Id. at 18.
. See id. at 20. Gray matter is comprised of “neurons that perform the brain’s tasks, such as the higher functions that are carried out in the prefrontal cortex.” Id. at 19.
. Id. at 21.
. Catherine Lebel & Christian Beaulieu, Longitudinal Development of Human Brain Wiring Continues from Childhood into Adulthood, 31 J. Neuroscience 10937, 10939 fig.2 (2011) (reporting a statistically significant increase in white brain matter volume for subjects between twenty and twenty-five years old); Adolf Pfefferbaum et al., A Quantitative Magnetic Resonance Imaging Study of Changes in Brain Morphology from Infancy to Late Adulthood, 51 Archives Neurology 874, 885 (1994) (reporting that after age twenty, white matter volume did not change until about approximately age seventy).
. Brief for the AMA, supra note 55, at 21–22, 22 n.67.
. Id. at 24. Myelin, a fatty white substance, insulates the pathways in which neural signals travel. Id. at 21–22. Myelination is the process by which these pathways are coated with myelin, and this process “continues through adolescence and into adulthood.” Id. at 22.
. See Brain Maturity Extends Well Beyond Teen Years, NPR (Oct. 10, 2011, 12:00 PM), http://www.npr.org/templates/story/story.php?storyId=141164708.
. While the Supreme Court has held that juveniles are categorically exempt from life without parole, mandatory or discretionary, for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 74–75 (2010), it has declined to rule on whether juveniles should be categorically exempt from life without parole for all crimes, Miller v. Alabama, 567 U.S. 460, 479–80 (2012). Others have argued the Eighth Amendment should be interpreted to categorically exempt all juveniles from life without parole, whether mandatory or discretionary. See generally Mary Berkheiser, Developmental Detour: How the Minimalism of Miller v. Alabama Led the Court’s “Kids Are Different” Eighth Amendment Jurisprudence Down a Blind Alley, 46 Akron L. Rev. 489 (2013) (criticizing Miller for failing to hold that the Eighth Amendment categorically bans the imposition of life without parole on juveniles, regardless of the crime). While it is beyond the scope of this comment, it is the author’s position that the Eighth Amendment should in fact be interpreted to require a categorical ban on life without parole for juvenile offenders, regardless of the crime or whether the sentence is mandatory. This Part therefore assumes the categorical exemption test is extended to all juveniles with regard to life without parole and to eighteen- to twenty-year-olds with regard to the death penalty. See generally Michaels, supra note 10.
. See, e.g., Roper v. Simmons, 543 U.S. 551, 567–75 (2005).
. Graham, 560 U.S. at 61.
. Roper, 543 U.S. at 563.
. Graham, 560 U.S. at 62.
. While it is beyond the scope of this paper, further scholarly study should address why there is a lack of information regarding sentencing practices unless they involve juveniles or the death penalty, and how this lack of transparency could potentially decrease the public’s confidence in the criminal justice system.
. Federal life imprisonment is effectively “life without parole” because federal parole was abolished in the 1980s. See U.S. Sentencing Comm’n, Guidelines Manual 2016, at 2 (2016), http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/GLMFull.pdf.
. Glenn R. Schmitt & Hyun J. Konfrst, U.S. Sentencing Comm’n, Life Sentences in the Federal System, at 1 (2015), http://www.ussc.gov/sites/default/files/pdf/ research-and-publications/research-projects-and-surveys/miscellaneous/20150226_Life_Se ntences.pdf.
. Id. at 9.
. Id. at 3. These guidelines are for offenses involving “murder, treason, certain drug trafficking offenses, and certain firearms offenses committed by career offenders.” Id.
. Id. at 3–4.
. Id. at 4.
. Id. at 7.
. See id.
. Carson & Sabol, supra note 11, at 21 tbl.15.
. The author recognizes that this conclusion is based on inferences. However, because of the lack of data on this subject, these are some of the only viable statistics available that contribute to the national consensus discussion required by the first part of the Court’s categorical exemption test. See supra note 106.
. Am. Civil Liberties Union, supra note 3, at 26 tbl.7.
. Again, the author recognizes this is far too small of a sample size to conclusively claim that the ACLU’s data is reflective of the entire prison population. See supra note 106.
. See Graham v. Florida, 560 U.S. 48, 62 (2010).
. Id. at 67.
. See Howard N. Snyder, U.S. Dep’t of Justice, Arrest in the United States, 1990–2010, at 17–18 tbl.3 (2012), https://www.bjs.gov/content/pub/pdf/aus9010.pdf.
. See id.
. Carson & Sabol, supra note 11, at 21 tbl.15.
. See Graham, 560 U.S. at 61.
. Id. at 67.
. See id. at 68, 74, 77–78 (holding that juveniles’ mitigating characteristics rendered penological justifications inadequate to justify the severity of life without parole for juvenile non-homicide offenders, and discretionary sentencing of juveniles to life without parole was too dangerous of a risk to allow).
. See, e.g., Cauffman et al., supra note 77, at 203–04.
. See, e.g., Bradley & Wildman, supra note 12, at 263.
. Roper v. Simmons, 543 U.S. 551, 570 (2005) (quoting Johnson v. Texas, 509 U.S. 350, 368 (1993)).
. Id. at 574 (“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18.”).
. Id. at 570.
. Graham v. Florida, 560 U.S. 48, 69 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)).
. Id. at 69–70.
. Id. at 70 (citation omitted).
. Id. at 74.
. Roper v. Simmons, 543 U.S. 551, 571 (2005).
. Graham, 560 U.S. at 71 (quoting Tison v. Arizona, 481 U.S. 137, 149 (1987)) (alteration in original).
. Cauffman et al., supra note 77, at 204.
. Modecki, supra note 74, at 85.
. Bradley & Wildman, supra note 12, at 263.
. Graham, 560 U.S. at 72.
. Id. (quoting Roper v. Simmons, 543 U.S. 551, 571 (2005)).
. Steinberg et al., Age Differences, supra note 76, at 35 & tbl.1.
. Modecki, supra note 74, at 85.
. Cauffman et al., supra note 77, at 204.
. Graham, 560 U.S. at 73.
. See Brief for the AMA, supra note 55, at 16–24.
. Hamilton, supra note 87, at 1115.
. See Graham, 560 U.S. at 73.
. Id. at 74.
. See id.
. See Brief for the AMA, supra note 55, at 16–24.
. Graham, 560 U.S. at 74.
. Id. at 77–79.
. Id. at 78 (quoting Roper v. Simmons, 543 U.S. 551, 572–73 (2005)).
. See Roper, 543 U.S. at 573.
. Again, while it is beyond the scope of this comment, the Court should apply this same logic to juvenile homicide offenders. See supra note 101.
. See Sweeney, supra note 3.
. Kuhn, supra note 3.
. FAMM, supra note 1.
. Kuhn, supra note 3.
. Sweeney, supra note 3.
. See Kuhn, supra note 3.
Elizabeth Childress Burneson, The Invisible Minority: Discrimination Against Bisexuals in the Workplace, 52 U. Rich. L. Rev. Online 63 (2018).
Click here to download PDF.
Elizabeth Childress Burneson *
The Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ+”) community has won major legal victories in the last twenty years, but at least one group remains left behind in those victories. The bisexual population is often ignored, erased, and discriminated against by both homosexual and heterosexual individuals and communities. This is true despite the fact that bisexuals outnumber both lesbian women and gay men.
This erasure and discrimination affects bisexuals in different areas of life and the law, including the employment context. Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects against employment discrimination on the basis of sex, has long been used as a tool for legal activists to protect the LGBTQ+ community from employment discrimination. For years, this strategy had mixed success in lower courts and no success in circuit courts or with the Equal Employment Opportunity Commission (“EEOC”).
Then, in 2015, the EEOC reversed its long-held position that claims of sexual orientation discrimination are not actionable under Title VII in David Baldwin. Two years after Baldwin, in 2017, the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana became the first circuit court to declare that sexual orientation discrimination is actionable discrimination under Title VII.
Both the Baldwin and Hively opinions endorsed or discussed three legal theories to support their holdings: an expansive statutory interpretation of Title VII, the affiliate discrimination theory, and the sex stereotyping theory. However, all three of these theories suffer serious flaws and fail to protect bisexual employees. These theories fail to take notice of how discrimination against bisexuals differs from discrimination against homosexuals and other key differences between bisexuals and monosexuals.
To ensure full protection of the law for bisexuals, LGBTQ+ advocates must urge Congress to amend Title VII to explicitly prohibit discrimination based on sexual orientation. The LGBTQ+ community and the legal community must also acknowledge the bisexual population in their legal analyses and advocacy.
A. Bisexuality Defined
Defining bisexuality is an important and challenging task; appropriate naming is a matter of substance and not merely style. The simplest way to define bisexuality is in contrast to monosexuality; that is, an attraction to more than one gender, sex, or gender identity. There are various axes upon which to define sexual orientation. Kenji Yoshino, in his seminal work on bisexual erasure, describes three different axes on which one can define sexual orientation: desire, conduct, and self-identification. Yoshino explains that a desire-based definition is the best definition for discussing bi erasure because it includes individuals with desires that they have not yet acted upon, likely because of stigma. Another way to conceptualize bisexuality is by reference to Alfred Kinsey’s sexual orientation spectrum.
The term “bisexual,” as used here, applies to any person that does not define himself or herself as monosexual. For the purposes of this paper, the term “bisexual” includes those identifying as pansexual, polysexual, omnisexual, or fluid. The English language, while on the one hand vast and ever changing, is on the other hand not entirely accurate in describing the complex nature of human relationships.
B. Bisexual Population
Virtually all reliable studies of sexual orientation populations have found that the population of bisexual individuals is equal to or greater than the population of gay men or lesbians. This is true despite the fact that researchers are concerned that bisexuals are underreported in studies on sexual orientation.
Nearly all sexual orientation studies conducted have found that “the incidence of nonexclusive orientation toward members of the same sex was ‘greater than or comparable to the incidence of homosexuality’”—starting as early as Kinsey’s studies in 1948 and 1953. Kinsey found that the percentage of the population that was bisexual was one-and-one-half times the percentage of the population that is homosexual. Subsequent studies all found the same—that the population of bisexuals was equal to or greater than the gay or lesbian population. Bisexual individuals represent a significant segment of the population, yet have been largely ignored in legal scholarship and the court system.
C. Bi Discrimination and Erasure
Bisexual individuals face unique challenges and varied forms of discrimination and erasure. While bisexuals face many of the same hardships that gays and lesbians encounter, bisexuals face the additional burden of “double discrimination”: they face discrimination by both heterosexuals and homosexuals. Bisexual people are often seen by monosexuals (both straight and gay) as “greedy” and “promiscuous,” as having not “picked a side,” or as just “going through a phase.” Some people refuse to believe that bisexuality exists at all.
Bisexuals are relatively invisible because most people have a tendency to presume that all individuals are either gay or straight, depending on the gender of their current partner. Bisexuals are also less visible because they are less likely than their gay and lesbian peers to come out: overall, bisexuals are “less than half as likely as gays and lesbians to have told most or all of the important people in their lives about their sexual orientations.” This invisibility is especially evident in the fact that only twenty-nine percent of respondents to a 2017 GLAAD survey reported knowing someone that is bisexual.
In addition to invisibility and “double discrimination,” Yoshino explains that bisexuals also face erasure from heterosexuals and homosexuals. Heterosexuals seek to erase same-sex desire and keep it silenced, but homosexuals also have an interest in “privileg[ing] the straight/gay binary.”
Fritz Klein states that one reason that bisexuals are discriminated against by both heterosexuals and homosexuals is that “the bisexual . . . opens up the possibility of their own sexual ambiguity. They cannot understand the bisexual’s ability to share their own preferences but not their own aversions.” Further, bisexuals face distinct discrimination from homosexuals. One reason for this, Robyn Ochs theorizes, is that homosexuals may see bisexuals as possessing a form of privilege not afforded to homosexuals because of their ability to “pass” as straight.
In 2000, Yoshino demonstrated the extent of bi erasure by showing the “striking discrepancy” in the mentions of homosexuality and bisexuality in major newspapers. An updated version of Yoshino’s media experiment shows that between January 1, 2010, and December 31, 2016: the Los Angeles Times had 694 documents mentioning the term “homosexuality,” and 29 mentioning “bisexuality;” and the Wall Street Journal had 306 documents mentioning “homosexuality,” and 8 mentioning “bisexuality.” While one may be led to believe things have improved since 2000, the striking discrepancy still exists.
Bi discrimination and erasure have a significant impact on the bi community. Recent data shows that bisexual men and women face more mental and physical health problems than gay men or lesbians: bisexuals have a higher rate of suicide ideation and bisexual women are more likely to “experience frequent mental distress” and have “poorer general health” than lesbians.
D. Bisexual Individuals in the Workplace
A majority of bisexual individuals face discrimination and harassment in the workplace because of their sexual orientation. One United Kingdom study found that bisexuals reported they “endure more scrutiny about their relationships from their colleagues” than their homosexual colleagues do. Twenty-five percent of heterosexual respondents in a 2016 study said they were uncomfortable seeing a LGBTQ+ coworker’s wedding picture.
Bi invisibility and erasure are also present in the workplace. A recent study found that bisexuals are “less likely to self-report their sexual orientation in [a] confidential human resource survey than their gay and lesbian peers” by eighteen to twenty percent. Another study found that bisexual individuals are “roughly one third as likely as gays and lesbians to feel comfortable being out in the workplace.” For bisexual employees, not being out in the workplace undermines their “engagement and retention” and leads to lower levels of satisfaction with their workplace.
A recent study by Ann Tweedy and Karen Yescavage found that bisexuals face significant levels of discrimination in the workplace. Their study revealed that 51.7% of bisexual respondents reported experiencing employment discrimination, and the number was even higher for bisexual respondents of color, at 68.8%. Their study revealed that 12.8% of bisexual respondents felt they had not been hired for a position because of their sexual orientation, and 7.7% of respondents reported being terminated because of their sexual orientation. Other reported forms of discrimination included verbal sexual harassment (experienced by 30.8% of bisexuals) and unfair access to fringe benefits (experienced by 27.4% of bisexuals).
Despite high instances of employment discrimination, bisexual plaintiffs bring very few employment discrimination cases, and succeed even more rarely. Tweedy and Yescavage’s study included a survey of employment discrimination cases brought by bisexual plaintiffs, finding only eleven cases on WestLaw, four or five of which were based on state laws, and the only successful suit was out of the United Kingdom.
E. The Courts’ Treatment of Bisexuals
Discrimination and erasure follow bisexuals into the courtroom, where they are ignored, erased, or negatively stereotyped by the courts. One of the most prominent cases involving bisexual plaintiffs is Apilado v. North American Gay Amateur Athletic Alliance, in which a gay softball league discriminated against bisexual plaintiffs. The league implemented a limit of two heterosexual members per team, and the league contested one team’s inclusion of bisexual players as contributing to their heterosexual player limit. Those players were subject to invasive questions about their sexual orientation.
In the immigration context, bisexuals have fared no better. Just last year, the Seventh Circuit denied the claim of Ray Fuller, a bisexual asylum seeker who claimed he was persecuted for his sexual orientation in his home country of Jamaica. The immigration judge expressed disbelief that bisexuals were persecuted, despite evidence that Fuller was the victim of extreme forms of sexual harassment and violence, including being stoned and stabbed. The judge also refused to believe that Fuller was bisexual; Fuller provided letters from ex-boyfriends but the judge was concerned that he was once married to a woman. As Judge Posner put it in his scathing dissent in the Seventh Circuit case, “[a]pparently the immigration judge does not know the meaning of bisexual.”
In the employment law context, bisexuals are primarily visible as a hypothetical “bisexual harasser,” brought up to demonstrate the absurdity of the now-foregone requirement that harassment need be desire-based to be actionable under Title VII. Even cases that have extended rights to the LGBTQ+ community ignore and erase bisexuals. In the landmark case challenging California’s Proposition 8, Plaintiff’s attorney, Ted Olson, pressed his client, Sandy Stier—a woman seeking to marry her female partner—because she had previously been married to a man. Olson questioned his client, saying, “Some people might say, ‘Well, it’s this and then it’s that and it could be this again.’ Answer that.” Olson’s comments implied that it was impossible for Stier to be attracted to both men and women and still deserve recognition for her marriage.
One possible reason for bisexual erasure is the strategies adopted by the LGBTQ+ legal community. The LGBTQ+ community, in the fight to obtain rights for sexual orientation minorities, has adopted a model referred to as the “homo kinship” model. The homo kinship, or “like straight,” model has been employed by advocates to show that “but for gays’ and lesbians’ differences, they are just like” straight people. This strategy attempts to normalize the LGBTQ+ community so that heterosexuals are more likely to accept them. However, this model has left behind bisexuals, because bisexuals are not “like straight,” in that they are attracted to more than one sex. Bisexuals challenge the monosexual paradigm on which our society insists. In this way, the LGBTQ+ community has left bisexuals behind in their legal strategy.
F. Changing Tides: EEOC Recognition and an Emerging Circuit Split
In 2015, the EEOC changed its longstanding practice of not recognizing sexual orientation discrimination under Title VII. In David Baldwin, Baldwin, a male air traffic controller, filed an EEOC complaint alleging that he was discriminated against on the basis of his sexual orientation. Baldwin alleged that he was not selected for a position because he was homosexual and that his supervisor made negative comments regarding his homosexuality. The EEOC held that Baldwin’s allegations of discrimination were actionable claims under Title VII’s prohibition of sex discrimination.
The EEOC gave three reasons to support its assertion that sexual orientation discrimination is sex discrimination: (1) sexual orientation “cannot be defined or understood without reference to sex,” (2) it is associational discrimination on the basis of sex, and (3) it involves sex-stereotyping.
The first reason supporting the EEOC’s conclusion is that sexual orientation is “inherently a ‘sex-based consideration’” and that discrimination based on sexual orientation “necessarily alleges” that the complainant’s sex was taken into account. The EEOC stated that the connection between “sex” and sexual orientation is an “inescapable link.” Second, the EEOC endorsed the affiliative theory of sexual orientation discrimination, following court decisions regarding racial affiliations. Third, the EEOC relied on the Supreme Court’s decision in Price Waterhouse v. Hopkins in holding that sexual orientation discrimination is a form of sex-stereotyping.
Two years later, in April 2017, the Seventh Circuit reviewed Kimberly Hively’s case and came to the same conclusion as the EEOC. Hively was a lesbian adjunct professor at Ivy Tech Community College who was “out” to her colleagues. After working at the college for fourteen years, her contract was not renewed; she alleged that it was due to her sexual orientation. The eight-judge majority cited the same three arguments cited by the EEOC in Baldwin: statutory interpretation, affiliative discrimination, and sex-stereotyping.
While Baldwin and Hively represent a victory for sexual orientation minorities, the theories they rely upon are flawed in several ways, and all fail to account for the existence of bisexuals.
II. Theories Supporting Prohibition of Sexual Orientation Discrimination Under Title VII
A. Statutory Interpretation and the Comparative Method
One argument in favor of interpreting “sex” to include sexual orientation comes from the history of the statute and its later interpretations. Proponents such as Judge Posner argue that the role of the court is to “mak[e] old law satisfy modern needs and understandings.” The argument is that we often interpret statutes to mean something that the drafters of the statute did not intend, and that courts have done so with Title VII repeatedly.
The dearth of legislative history on the definition of “sex” in Title VII fuels these claims. The history of the addition of “sex” to Title VII is strange and virtually unparalleled in modern legislative history, and leaves behind interpretive questions: how does one interpret a term in a statute, knowing that the term was introduced with the expectation that the term would cause the statute to fail? Because there is so little guidance from the legislative history, the argument goes, one can look at the history of interpreting the term “sex.” The court’s interpretation of “sex” over the years has stretched far beyond adverse employment actions because of gender to include hostile workplace claims, sexual harassment claims by individuals of the same sex, and even sex stereotyping claims. This evolution shows a willingness on the part of the Supreme Court to extend Title VII beyond the drafters’ intentions, and some argue that this trend should continue to extend protection to sexual orientation minorities.
In Baldwin, the EEOC offered its own interpretation of Title VII, noting that the question is whether the employer “relied on sex-based considerations” and that sexual orientation “cannot be defined or understood without reference to sex.” The EEOC held that sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and cited Heller v. Columbia Edgewater Country Club for the proposition that “[o]ne way . . . [to allege discrimination] is to inquire whether the harasser would have acted the same if the gender of the victim had been different.” This method is referred to as the “comparative method.”
To demonstrate the comparative method, the EEOC gave the following example: an employer suspended a female employee for displaying a photo of her wife but did not suspend a male employee for displaying a photo of his wife. Because the first employee was only suspended because she was a woman, the discrimination was because of the employee’s sex.
The majority in Hively also discussed the comparative method and insisted that the critical step in comparing employees is that all variables but the employee’s sex remain the same, especially the sex of the employee’s partner. The proper test, the majority insisted, is how a female employee who has a wife fares compared to a male employee who has a wife.
However, as the dissent in Hively pointed out, the majority “distorts” the comparative method: the appropriate comparison is between a female homosexual employee and a male homosexual employee. According to the dissent, that is the only way to isolate the single characteristic (sex); otherwise, the comparison is between a gay woman and a straight man, which changes two variables at once (sex and sexual orientation).
The comparative method has another serious flaw: it ignores the existence of bisexuals. When one applies the comparative method to bisexuals, it becomes clear that discrimination based on an employee’s sexual orientation is not “because of sex.” Presumably, a woman with female and male partners and a man with female and male partners would both be discriminated against. When the test is applied to bisexual employees, it becomes clear that the discrimination is truly because of sexual orientation and not sex.
Further, the comparative method puts the focus of analysis on the current partner of the employee, which may hurt bisexuals. A bisexual may be discriminated against even if their current partner is of a different sex. If a bisexual woman has both male and female partners, and is discriminated against while she has a male partner, this discrimination would “fail” the comparative method test.
The EEOC and the court in Hively ignored the possibility of discrimination against bisexual employees, and that is a fatal flaw in their analyses. Overall, the statutory interpretation adopted by the EEOC and the Hively majority falls short in serious ways, and fails to protect—or even recognize—bisexuals.
B. Associational Discrimination
Another theory advanced by both the EEOC and the Hively court is the associational discrimination theory, also referred to as “relational discrimination” or “affiliative discrimination.” This theory posits that sexual orientation discrimination is prohibited under Title VII because it involves looking to the sex of the employee in relation to the sex of the individuals with whom that employee associates.
This theory of protection stems from case law involving race and national origin discrimination under Title VII. It has been suggested that because Title VII “treats each of the enumerated categories . . . exactly the same,” the same interpretation that applies to race and national origin should also apply to sex.
The first case to apply this relational theory to race discrimination was Whitney v. Greater New York Corp. of Seventh-Day Adventists, in the Southern District of New York in 1975. Plaintiff Whitney was discharged “because she, a white woman, associated with a black.” The court in Whitney held that her discharge as a white woman, because of her association with a black man, fit within Title VII’s prohibition against discrimination “because of . . . race.” Following Whitney, district courts in several other states began to accept the relational discrimination theory as to race, and now the Second, Sixth, and Eleventh Circuits have adopted this approach. Only one district court has extended the relational theory to sex discrimination cases.
One argument for viewing sexual orientation in a relational context is consistency; for example, it would be “structurally inconsistent” to treat some of the protected characteristics relationally, but not others. Victoria Schwartz argues that one benefit to this interpretation is that it does not require the term “sex” to mean anything other than its intended meaning. Sexual orientation discrimination, Schwartz posits, is discrimination on the basis of sex because one must look at an individual’s sex in relation to others. Schwartz explains that “sexual orientation is an inherently relational concept” because the discrimination occurs where the individual “is of the wrong sex in relation to the sex of the people she generally associates with romantically.”
Sexual orientation relates to an individual’s sex in relation to his or her partner, but only if that individual is monosexual. Bisexuals are not the “wrong sex” in relation to their partners because their partners are not a single sex; this is especially true of a bisexual individual whose current partner is of a different sex. Further, for bisexuals, discrimination is not because of their sex vis-à-vis another person, but rather other persons.
Similarly, in Baldwin, the EEOC stated that Title VII prohibits sexual orientation discrimination based on the fact that “such individuals are in a same-sex marriage or because the employee has a personal association with someone of a particular sex.” This analysis notably uses the terms “same-sex marriage” and “a particular sex” which narrows the scope of protected employees to exclude bisexual individuals in different-sex marriages and employees that do not associate with “a particular sex,” but rather with multiple sexes.
For bisexuals, discrimination is more complex than being the “wrong” sex in contrast to their partner. Bisexual discrimination is often due to failure to conform to monosexuality, rather than the sex of a current or future partner. A bisexual female employee may be discriminated against even if she has a male partner, the “right” sex. Schwartz and the EEOC describe the problem in a way that ignores bisexuals and ignores the ways that discrimination against bisexuals is different than discrimination against gays and lesbians.
C. Sex Stereotyping
The third theory advanced by the EEOC and the Seventh Circuit is that sexual orientation discrimination is a form of sex stereotyping, based on the Supreme Court’s holding in Price Waterhouse v. Hopkins. Price Waterhouse established that employees can bring Title VII claims for discrimination based on failure to conform to gender stereotypes.
Ann Hopkins was a senior manager at Price Waterhouse who was proposed for partnership but was ultimately denied the position. Hopkins received glowing references from some colleagues, yet reviews from other colleagues contained harsh personal critiques of Hopkins, saying she was “overly aggressive,” “macho,” and needed a “course at charm school.”
The court held that Hopkins was discriminated against because of her sex, reasoning that Title VII’s prohibition of sex discrimination is a broad prohibition that “forbids employers [from even making] gender an indirect stumbling block to employment opportunities.” The court framed the required analysis as: “if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.” Applying this analysis, the court found that a man would not have been discriminated against for exhibiting the same traits.
Homosexual plaintiffs have used the sex-stereotyping theory to bring claims of harassment or discrimination under Title VII with limited success. Plaintiffs advancing the sex-stereotyping theory allege that they were impermissibly “judged against the standard of how a stereotypical person of the same sex should look and act” and discriminated against because of that judgment. For example, in a Massachusetts case, Stephen Centola, a homosexual man, brought a claim against his employer for discrimination based on sex stereotyping for harassment he experienced at work. Applying the sex-stereotyping theory, the court held that Centola was “discriminated against . . . because he failed to meet their gender stereotypes of what a man should look like, or act like.”
The court in Centola struggled with whether the harassment was because of Centola’s sexual orientation or his failure to conform to gender stereotypes. The court illustrated the intertwined nature of sexual orientation discrimination and sex stereotyping:
The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, “real men don’t date men.” The gender stereotype at work here is that “real” men should date women, and not other men. Conceivably, a plaintiff who is perceived by his harassers as stereotypically masculine in every way except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what “real” men do or don’t do.
The court’s analysis here suggests, although in dicta, one route to Title VII protection for gay men or lesbians who otherwise conform to gender stereotypes. This has given some scholars and proponents of LGBTQ+ rights reason to hope.
In the wake of Price Waterhouse, some scholars have advanced a theory that would enable gay and lesbian employees—regardless of their gender conformity—to assert Title VII claims: the “ultimate gender stereotype” theory. Proponents of the ultimate gender stereotyping theory argue that there is “a common gender stereotype in play for both gender-conforming and gender-non-conforming gays and lesbians,” which is that “‘real’ men and women should not be attracted to a member of the same sex.”
The first issue with this theory is that sexual orientation stereotyping is not gender stereotyping at all. Zachary Kramer, in his article on this theory, articulates the nature of masculine and feminine stereotypes: “[G]ender stereotyping relies on the existence of both a masculine and a feminine stereotype. These stereotypes are interrelated in that the purpose of either stereotype is to contrast with the other, rendering masculinity and femininity polar opposites on a gender continuum.” To be a gender stereotype, the stereotype must be specific to one gender and be in contrast to the stereotype for the opposite gender.
Two examples help elucidate this point. First, it is a gender stereotype that “women should wear makeup at work,” but men should not. Those two stereotypes contrast each other and are polar opposites. However, it is not a gender stereotype that “women should dress professionally for work,” because men should do so also. Sexual orientation falls into the second category.
While Kramer and others have framed the stereotype in a way that makes the two stereotypes seem opposite (men only date women and women only date men), the actual stereotype is “women and men should only be attracted to people of the opposite gender.” This is not a gender stereotype, but rather an expression of heterosexism, as it applies to both genders. The dissent in Hively echoed this analysis, stating plainly: “heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-specific stereotype at all.”
Another issue with this theory is that it does not always work as applied to bisexuals. Another formulation of the ultimate gender stereotype is that “real men are and should be sexually attracted to women, and real women invite and enjoy that attraction.” Under this formulation, bisexuals conform to the stereotype: bisexual men are attracted to women and bisexual women are attracted to men. This formulation of the stereotype would leave bisexuals unprotected, because they conform to their respective sex stereotypes. This highlights another issue with sex-stereotyping theory: clarifying what the stereotype actually is, and how it is to be framed.
Further, relying on the sex-stereotyping theory is demeaning to sexual orientation minorities and will likely be harmful to the LGBTQ+ movement. The cruel irony of using this theory to protect gays, lesbians, and bisexuals is that it forces them to advance the theory that they are not “real men” or “real women” and that they do not conform to gender stereotypes. It is also plausible that there will come a time when being a “real man” no longer means exclusive sexual attraction to women, and being a “real woman” means something far from the stereotype we now envision.
III. Conclusion and a Possible Solution: Revising Title VII
Because all three of the legal theories discussed have fatal flaws and fail to adequately protect bisexual employees, LGBTQ+ advocates must push to protect the full spectrum of sexual orientation minorities by amending Title VII. But more than that, we must also be inclusive in all of our discussions of sexual orientation minorities, and we must recognize the largest sexual orientation minority, or else they will continue to face societal harms.
The legal theories that purport to extend protection to sexual orientation minorities under Title VII fall short in crucial ways, especially for bisexuals, so the LGBTQ+ community must demand amendment of Title VII to include them by name, or passage of the Employment Non-Discrimination Act (“ENDA”). Of the two, amending Title VII is the preferable path.
First, Title VII protects more than just employment discrimination and cures more issues, while the ENDA would cover only employment discrimination. The narrow scope of the ENDA leaves little room for legal protections to “migrate” to other areas of the law, such as education. Further, the ENDA’s religious exception and lack of a bona fide occupational qualification exception make it more prone to exceptions and less favorable than amending Title VII.
There is value in declaring that sexual orientation is a protected characteristic and that discrimination on such basis is abhorrent, and thus should be prohibited under the law—rather than piecing together several interpretive theories to provide protection. Congress took a bold stance in 1964 to declare that we as a nation will not tolerate sex, race, or national origin discrimination, and it is time we do the same for all forms of sexual orientation discrimination.
* J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2012, Lynchburg College. I wish to express my sincere gratitude to Professor Steve Allred for his mentorship, expertise, and wise counsel. I also wish to thank the members of the University of Richmond Law Review for their time and effort preparing this comment for publication. I also wish to thank Arianna Stelling, my sounding board, informal consultant, and best friend. Finally, I wish to give special thanks to my husband, Brandon Burneson, for his constant and unending support.
. See infra Part I.C.
. See infra Part I.B.
. See infra Part II.A.
. David Baldwin, EEOC Appeal No. 0120133080, at 15 (July 15, 2015), https://www. eeoc.gov/decisions/0120133080.pdf.
. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 341 (7th Cir. 2017) (en banc).
. See id. at 341–44; Baldwin, EEOC Appeal No. 0120133080, at 8–10, 13.
. See, e.g., Elizabeth M. Glazer, Sexual Reorientation, 100 Geo. L.J. 997, 1062 (2012) (discussing the philosophers of language and the debate over the importance of naming). Conscientious language use is especially important in the context of LGBTQ+ scholarship and legal history, where the terms “gays and lesbians” and “homosexuals” are often used as shorthand for all sexual orientation minorities. While the use of these phrases may seem innocuous, they indicate the larger issue of bisexual erasure and invisibility. See id. at 1062–64.
. Monosexuality is defined as “[a]ttraction to a single gender.” Ashley Mardell, The ABC’s of LGBT+ 11 (2016).
. Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 Stan. L. Rev. 353, 371 (2000).
. Id. at 373. Yoshino also narrowly defines desire as sexual appetite or lust that is “more than incidental.” Id. at 373, 377.
. Id. at 380–81. Kinsey famously posited that rather than using strict dichotomies, sexual orientation is best explained as a continuum. Id. at 380. The Kinsey scale spans from zero to six, with zero representing heterosexuality (with no desire for the same sex), and six representing homosexuality (with no desire for the opposite sex). Id. For purposes of his research, Yoshino categorizes Kinsey scale numbers two, three, and four as individuals that would be bisexual: (2) “[m]ore than incidental homosexual contacts; but more frequent heterosexual contacts;” (3) “[e]qual homosexual and heterosexual contacts;” and (4) “[m]ore than incidental heterosexual contacts; but more frequent homosexual contacts.” Id. at 380–81.
. See Mardell, supra note 8, at 8, 12, for definitions:
“Pansexual/romantic a.k.a. Omnisexual/romantic: Capable of being attracted to any or all gender(s).”
“Polysexual/romantic: Someone who experiences attraction to multiple, but not necessarily all, genders.”
“Fluid: Not fixed, able to change.”
. The term “bisexual” is used in this comment because it is the term used most often in research and legal scholarship, and is “widely understood as describing those whose attractions fall outside an either/or paradigm.” Lindasusan Ulrich, San Francisco Human Rights Comm’n, Bisexual Invisibility: Impacts and Recommendations, at iii (2011).
. See id. at 2–3 (providing a comprehensive review of recent studies showing population totals for gays, lesbians, and bisexuals).
. Yoshino, supra note 9, at 383. There is evidence to support underreporting, as studies have found that bisexuals are less likely to be “out” to important people in their lives and less likely to self-identify as bisexual on a confidential human resources survey. Human Rights Campaign Found., Bisexual Visibility in the Workplace (2016), http://assets. hrc.org//files/assets/resources/Bi_Inclusion_One_Sheet_FINAL_2016.pdf?_ga=1.92999320. 440168641.1486155417.
. Glazer, supra note 7, at 1008 & n.54; Yoshino, supra note 9, at 386.
. Yoshino, supra note 9, at 380–82.
. Id. at 382.
. E.g., id.
. Ann E. Tweedy & Karen Yescavage, Employment Discrimination Against Bisexuals: An Empirical Study, 21 Wm. & Mary J. of Women & L. 699, 702–03 (2015); Robyn Ochs, Biphobia: It Goes More Than Two Ways, in Bisexuality: The Psychology and Politics of an Invisible Minority 217, 217 (Beth A. Firestein ed., 1996).
. Yoshino, supra note 9, at 374, 391, 398.
. See, e.g., Benoit Denizet-Lewis, The Scientific Quest to Prove Bisexuality Exists, N.Y. Times, (Mar. 20, 2014), https://www.nytimes.com/2014/03/23/magazine/the-scientific-quest-to-prove-bisexuality-exists.html (“I can’t tell you how many people have told me, ‘Oh, I wouldn’t date a bisexual.’ Or, ‘Bisexuals aren’t real.’”); Loraine Hutchins, Bisexuality: Politics and Community, in Bisexuality: The Psychology and Politics of an Invisible Minority 240, 240–41 (Beth A. Firestein ed., 1996); Ochs, supra note 20, at 224 (“A primary manifestation of biphobia is the denial of the very existence of bisexual people.”).
. Ochs, supra note 20, at 225. For example, two women holding hands “read as gay,” while a man and a woman holding hands “read as straight,” but both or all of them could be bisexual. Ulrich, supra note 13, at 3.
. Tweedy & Yescavage, supra note 20, at 704. The stigma of bisexuality discourages people from coming out, which further contributes to their invisibility. See Human Rights Campaign Found., supra note 15.
. GLAAD, Accelerating Acceptance 4 (2017), https://www.glaad.org/files/aa/2017 _GLAAD_Accelerating_Acceptance.pdf.
. Yoshino, supra note 9, at 361.
. Id. at 367.
. Fritz Klein, The Bisexual Option 11 (2d ed. 2013).
. Ochs, supra note 20, at 217. Another reason that bisexuals face discrimination from the homosexual community is the HIV epidemic of the 1980s. Id. at 231. Many homosexuals, particularly lesbians, believed that bisexual women were the conduit from which HIV spread to lesbians from the heterosexual community. Id.
. Yoshino, supra note 9, at 368.
. Search of LexisNexis, https://www.lexisnexis.com (narrow search results to “News”; then search in search bar for “homosexuality”; then narrow by “sources > Los Angeles Times”; then narrow by “Timeline > 01/01/2010 to 12/31/2016”).
. Search of LexisNexis, https://www.lexisnexis.com (narrow search results to “News”; then search in search bar for “homosexuality”; then narrow by “sources > The Wall Street Journal”; then narrow by “Timeline > 01/01/2016 to 12/31/2016”).
. Tweedy & Yescavage, supra note 20, at 703–04.
. Id. at 724. The most common type of discrimination bisexual employees experience is inappropriate jokes or insults, with nearly sixty percent of bisexuals saying they have faced this sort of harassment. Id. at 727.
. Glazer, supra note 7, at 1001.
. GLAAD, supra note 25, at 6.
. Human Rights Campaign Found., supra note 15.
. Tweedy & Yescavage, supra note 20, at 704. A person who is “out” is “a person who is open about being bisexual, gay, lesbian, or transgender.” Further, “[c]oming out is a lifelong process of self-acceptance of one’s sexual orientation and/or gender identity.” Ulrich, supra note 13, at 38.
. See Human Rights Campaign Found., supra note 15.
. Tweedy & Yescavage, supra note 20, at 707.
. Id. at 724. Tweedy and Yescavage’s study is the “first descriptive, quantitative study designed to specifically measure the subjective experiences of bisexuals with employment discrimination.” Id. at 718.
. Id. at 725.
. Id. at 727–28.
. See id. at 709–10.
. Id. at 709–10, 710 nn.51–52.
. Apilado v. N. Am. Gay Amateur Athletic All., 792 F. Supp. 2d 1151, 1155–56 (W.D. Wash. 2011).
. Id. In response to one player’s admission that he was attracted to men and women, one committee member said, “this is not a bisexual world series—this is a gay world series.” Tweedy & Yescavage, supra note 20, at 712. This case—and those statements—are indicative of the discrimination faced by bisexuals by the gay and lesbian community, despite the fact that the league’s mission statement “explicitly included promotion of the participation of bisexuals.” Id. The court ultimately focused on the league’s intrusive questions, and not on the discriminatory definition of “gay” or “straight” that excluded bisexuals, essentially ignoring the question of bisexual discrimination. See Apilado, 792 F. Supp. 2d at 1156; Tweedy & Yescavage, supra note 20, at 712–13.
. Fuller v. Lynch, 833 F.3d 866, 867 (7th Cir. 2016).
. Id. at 872 (Posner, J., dissenting).
. Id. at 873–74.
. Id. at 879.
. See, e.g., Regina L. Stone-Harris, Same-Sex Harassment—The Next Step in the Evolution of Sexual Harassment Law Under Title VII, 28 St. Mary’s L.J. 269, 283–84 (1996).
. Glazer, supra note 7, at 1001 (referencing Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)).
. Glazer, supra note 7, at 1001 (quoting Transcript of Record at 166–67, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. C 09-2292_VRW), http://www. afer.org/wp-content/uploads/2010/01/Perry-Vol-1-1-11-10.pdf).
. Id. at 1014.
. Id. at 1016.
. David Baldwin, EEOC Appeal No. 0120133080, at 5–6, 14 (July 15, 2015), https:// www.eeoc.gov/decisions/0120133080.pdf.
. Id. at 1–2.
. Id. at 2. His supervisor commented about “that gay stuff,” and told Baldwin that he was causing “a distraction” any time he mentioned his partner. Id.
. Id. at 14.
. Id. at 6.
. Id. at 8.
. Id. at 9.
. Id. at 6.
. Id. at 8.
. Id. at 9.
. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 350, 359 (7th Cir. 2017) (en banc).
. Id. at 341.
. Id. at 343, 345.
. Id. at 352 (Posner, J., concurring).
. See, e.g., id. at 352–53.
. Zachary A. Kramer, The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender Non-Conforming Homosexuals Under Title VII, 2004 U. Ill. L. Rev. 465, 470 (2004); see, e.g., Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977) (noting that “[t]here is a dearth of legislative history” regarding Title VII).
. See Kramer, supra note 75, at 469.
. See generally id. (discussing the history and development of sexual discrimination claims).
. David Baldwin, EEOC Appeal No. 0120133080, at 6 (July 15, 2015), https:// www.eeoc.gov/decisions/0120133080.pdf. This opinion provides definitions of “gay,” “lesbian,” and “heterosexual” to illustrate that point, but notably provides no definition of “bisexual.” Id.
. Id. at 7 (citing Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002)).
. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 345 (7th Cir. 2017) (en banc).
. Baldwin, EEOC Appeal No. 0120133080, at 7.
. Hively, 853 F.3d at 345.
. See id.
. See id. at 366 (Sykes, J., dissenting).
. But see id. at 355 (Posner, J., concurring) (mentioning bisexuals, but incorrectly defining bisexuality “as having both homosexual and heterosexual orientations”).
. See id. at 347, 349 (majority opinion); David Baldwin, EEOC Appeal No. 0120133080, at 8 (July 15, 2015), https://www.eeoc.gov/decisions/0120133080.pdf; Pierce G. Hand IV, Affiliative Discrimination Theory: Title VII Litigation Within the Sixth Circuit, 32 Ga. St. U. L. Rev. 541, 543–44 (2016); Victoria Schwartz, Title VII: A Shift from Sex to Relationships, 35 Harv. J.L. & Gender 209, 211 (2012).
. See, e.g., Baldwin, EEOC Appeal No. 0120133080, at 8.
. See Hively, 853 F.3d at 347–49; Schwartz, supra note 88, at 221–23.
. See, e.g., Baldwin, EEOC Appeal No. 0120133080, at 8–9 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9 (1989)).
. Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401 F. Supp. 1363, 1366 (S.D.N.Y. 1975); Schwartz, supra note 88, at 217.
. Whitney, 401 F. Supp. at 1366.
. Schwartz, supra note 88, at 223–28.
. In the Hustedt Chevrolet cases, two male employees of a car dealership claimed that their supervisor harassed a female co-worker, and then harassed them “based on what can fairly be characterized as [the defendant’s] perception of his association with [the female co-worker].” The court reasoned that “but for his sex, male, his relationship with his coworker, female, . . . would not have been an issue.” Ventimiglia v. Hustedt Chevrolet, No. 05-4149, 2009 U.S. Dist. LEXIS 24834, at *28–33 (E.D.N.Y. Mar. 25, 2009); see also Weiss v. Hustedt Chevrolet, No. 05-4230, 2009 U.S. Dist. LEXIS 59408, at *28–34 (E.D.N.Y. July 13, 2009); Pratt v. Hustedt Chevrolet, No. 05-4148, 2009 U.S. Dist. LEXIS 26312, at *24–29 (E.D.N.Y. Mar. 27, 2009). This, of course, is only true if one assumes all parties are heterosexual.
. Schwartz, supra note 88, at 247.
. Id. at 248.
. See id.
. Id. at 248–49.
. David Baldwin, EEOC Appeal No. 0120133080, at 9 (July 15, 2015), https:// www.eeoc.gov/decisions/0120133080.pdf.
. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 342 (7th Cir. 2017) (en banc) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)); Baldwin, EEOC Appeal No. 0120133080, at 5–6 (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
. Price Waterhouse v. Hopkins, 490 U.S. 228, 272–73 (1989). It is worth noting that the lead opinion in Price Waterhouse was not a majority, but a four-Justice plurality.
. Id. at 231–32.
. Id. at 235.
. Id. at 242. Price Waterhouse is also a formative case for its discussion of mixed-motive discrimination, like here, where the employer had both legitimate reasons and discriminatory reasons for the adverse employment decision. Id. at 252. Congress amended the statute later to reflect that but-for causation is not required when there is at least one discriminatory motive. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, sec. 107(a), § 703(m) (codified as amended at 42 U.S.C. § 2000e–2(m) (2012)).
. Price Waterhouse, 490 U.S. at 250.
. Id. at 258.
. See, e.g., Simonton v. Runyon, 232 F.3d 33, 34–35 (2d Cir. 2000) (holding that Title VII does not prohibit discrimination based on sexual orientation); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (holding that Title VII does not prohibit discrimination based on sexual orientation); Centola v. Potter, 183 F. Supp. 2d 403, 414 (D. Mass. 2002) (holding that Title VII does not prohibit discrimination based on sexual orientation).
. Kramer, supra note 75, at 485.
. Centola, 183 F. Supp. 2d at 406.
. Id. at 406, 409.
. See id. at 408.
. Id. at 410 (citation omitted).
. See, e.g., Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1353–54 (2014).
. See generally id.; Kramer, supra note 75, at 489.
. Kramer, supra note 75, at 489.
. Id. at 490.
. Id. at 483.
. See Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); Kramer, supra note 75, at 496.
. See I. Bennett Capers, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158, 1159 (1991) (discussing heterosexism as the “institutional valorization of heterosexual activity”).
. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 370 (7th Cir. 2017) (Sykes, J., dissenting).
. Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 196 (1988).
. See, e.g., Case, supra note 115, at 1374–75 (offering a robust discussion of the ENDA’s shortfalls).
. Id. at 1373.
. Id. at 1374–75.
* J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2012, Lynchburg College. I wish to express my sincere gratitude to Professor Steve Allred for his mentorship, expertise, and wise counsel. I also wish to thank the members of the University of Richmond Law Review for their time and effort preparing this comment for publication. I also wish to thank Arianna Stelling, my sounding board, informal consultant, and best friend. Finally, I wish to give special thanks to my husband, Brandon Burneson, for his constant and unending support.