Compulsory sexuality.

• Author: Emens, Elizabeth F.
• Position: Asexuality as means to broaden antidiscrimination law framework - Introduction through II. Mapping Asexual Identity, p. 303-344

INTRODUCTION I. THE EMERGENCE OF ASEXUALITY A. Conceptual: The Fourth Sexual Orientation B. Clinical: Hypoactive Sexual Desire Disorder C. Empirical: The One Percent Who Wants No One D. Self-Identified Aces Find Themselves and Each Other II. MAPPING ASEXUAL IDENTITY A. Defining Asexuality as an Identity. Elements and Distinctions 1. Principal elements a. Lack of attraction b. Lack of choice 2. Key distinctions a. Distinguishing sex with oneself from sex with other people b. Distinguishing romance from sex and friendship c. Distinguishing aversion and indifference 3. Identity in relation 4. The problem of diversity 5. Responding to the skepticism B. Intersections: Comparing Identity Categories 1. Sexuality a. Homosexuality b. Bisexuality c. Polyamory d. No sexual orientation 2. Gender a. No gender b. Very gendered 3. Disability a. Disability as asexuality b. Asexuality as disability C. Models: Minoritizing, Universalizing, Novel, or Umbrella Category 1. Minoritizing 2. Universalizing 3. Something new a. Quantity axis b. Autoerotic axis c. Narcissism axis d. Romantic-attraction axis e. Orientation-object axis 4. An umbrella category of orientation III. ASEXUAL LAW AND OUR SEXUAL LAW A. Asexuality's Interactions with Law: An Analytic Framework B. Legal Requirements of Sexual Activity 1. Marriage law 2. Looking beyond conjugality in marriage and its alternatives C. Legal Exceptions to Shield Sexuality 1. The sex work debates 2. Marvin and nonmarital agreements D. Legal Protections from Others' Sexual Expression 1. Sexuality as legal architecture 2. Sexual harassment law E. Legal Protections for Sexual Identity 1. Asexuals enter state law: New York's Sexual Orientation Non-Discrimination Act 2. Antidiscrimination protection: a normative assessment a. Discrimination against asexuals b. The stakes of recognition c. Legal implications: will there be any cases? d. The case for antidiscrimination protections 3. Prospects for change a. The criteria: a brief exposition b. The criteria applied to familiar categories c. Applying the criteria to asexuality: difficulties of fit d. The conditions for change CONCLUSION INTRODUCTION

I'm trying to imagine never being hungry, but still living in a world that's obsessed with food. I can imagine people saying "[H]ey, what did you think of the salmon?"

"[M]eh, it's okay, I don't really like food[.]"

"... [W]ait, you must mean you don't really like salmon ... [W]hat do you mean you don't like food?"

"[I] just ... [I] just don't see what's so great about food."

"[U]hh, it's delicious[.]"

"[S]ee, it's just not that appealing to me[.]" (1)

Asexuality is the middle child of the sexual orientation family, neglected until recently by both sexuality studies and progressive politics. In the last few years, though, those who "do[] not experience sexual attraction" (2) have inspired increasing research attention and subcultural affiliation. Asexuality has been featured on high-profile news and talk shows, (3) and spurred a popular documentary film, (A)sexual. (4) And the term has begun to enter our legal vocabulary: one state and several localities across the country protect against discrimination on the basis of "asexuality." (5)

What might our legal system look like through the eyes of someone who does not experience sexual attraction? And how might our social practices and expectations--our cultural laws--look to asexual eyes? Ours is arguably a sexual law, casting asexuals on the outside in a range of ways. (6) This Article considers our culture and laws through the lens of asexuality.

Asexuality has thus far received no attention in the legal literature. The Article therefore presents a careful examination of the emergence of asexuality as a conceptual and cultural phenomenon. It introduces the key terms and trends surrounding asexuality in the burgeoning community of self-identified asexuals, and then develops an understanding of the place of asexuality amidst our other identity categories and in the public imagination. Examining responses to asexuality, and the possible analogies to it, draws forth insights both about asexuality and about our broader culture.

In contrast to homosexuality, asexuality has not been expressly punished by the law. For this reason, asexuality may appear to have little connection to law. On the contrary, this Article identifies a broad range of legal intersections with asexuality. Most surprising is that one state--New York--and several localities include asexuality within their antidiscrimination laws. (7) There is a plausible argument for such protections, bolstered by a recent finding that asexuals face bias similar to, or greater than, that faced by homosexuals and bisexuals. (8) Nonetheless, there is a common intuition that asexuality is a poor fit with existing antidiscrimination law. (9) This Article therefore identifies eight criteria that track the degrees of protection accorded to different identity categories and considers asexuality in light of these criteria. Asexuality currently meets very few of the criteria, though this could change over time. (10)

The Article has three parts. Part I explains asexuality's emergence as an identity category through conceptual, clinical, empirical, and identity-based discourses. Part II then maps the rise of asexuality as an identity movement. It introduces asexuality's core definitional axes before examining its linkages with other identity categories, the responses it engenders in contemporary culture, and possible models for understanding it. Part III looks at our laws from the perspective of asexuality, outlining and applying a framework for analyzing asexuality's intersections with law. This Part concludes by identifying a plausible normative case for protecting asexuality under antidiscrimination law and by reflecting on what would need to happen for this protection to become widespread.

1. THE EMERGENCE OF ASEXUALITY The definition of asexuality is "someone who does not experience sexual attraction."

   --Asexual Visibility & Education Network (AVEN) (11)

   Asexuality emerged as an analytic category only recently. Four discourses shape its emergence: one conceptual, one clinical, one empirical, and one identity based. These discourses intersect and inform each other, but distinguishing them helps to illuminate diverse perspectives on this phenomenon. This Part therefore introduces asexuality by telling the story of its development as a category of analysis through these four contexts.

   1. Conceptual: The Fourth Sexual Orientation

      The identification of asexuality as a concept is generally attributed to the psychologist Michael D. Storms, whose 1980 article posited asexuality as a fourth sexual orientation, alongside homosexuality, heterosexuality, and bisexuality. (12) Storms challenged the Kinsey scale, which located subjects somewhere on a spectrum from exclusive heterosexual orientation (zero) to exclusive homosexual orientation (six). (13) "On Kinsey's unidimensional scale," as Storms aptly explained it, "an individual loses degrees of one orientation as he or she moves toward the opposite end of the scale; thus, bisexuals are seen as half heterosexual and half homosexual or a compromise somewhere between the two extremes." (14) By contrast, Storms proposed a two-dimensional model--portrayed in Figure 1--in which homoeroticism and heteroeroticism were separate axes, along which any person could have greater or lesser amounts of either, independent of the other.

      Storms pointed out that his model overcame a problem that had hindered not only Kinsey's work, but also that of Masters and Johnson: the conflation of bisexuals and asexuals. (16)

      Kinsey's work had revealed a substantial population of subjects--especially among unmarried females--who reported no desire for either men or women; however, Kinsey had largely ignored these subjects, labeling them "X." (17) (As a sign of the changing times, representatives of the Kinsey Institute now speak publicly in support of the plausibility of asexuality as a sexual orientation.) (18) Storms's 1980 study supported his theoretical model distinguishing bisexuals and asexuals by showing that the bisexuals in his study "actually reported just as much same-sex fantasy as homosexuals and just as much opposite-sex fantasy as heterosexuals." (19) Storms concluded that "these data are better described by a two-dimensional model in which homoeroticism and heteroeroticism are viewed as separate variables and in which bisexuality is defined as scoring high on both dimensions." (20) Although Storms's empirical project did not include asexuals, his theoretical model made a space for asexuals as those individuals who score low on both dimensions. (21) It is worth noting that, while Storms is often cited as initiating the study of asexuality, another scholar--Myra T. Johnson--had published an article more specifically about asexuality shortly before Storms published his. Johnson's article focused on asexuality in women, a point to which I return when discussing the gendered dimensions of asexuality in Part II. (22)

   2. Clinical: Hypoactive Sexual Desire Disorder

      Also in 1980, clinical psychology introduced its version of asexuality. (23) The third edition of the American Psychiatric Association's Diagnostic and Statistical Manual (DSM-III) included an entry for "Inhibited Sexual Desire," the title of which nicely captures the underlying clinical assumption that desire always exists, though pathologies may inhibit its expression. (24) In 1987, the revised DSM-III shifted to the terminology of "Hypoactive Sexual Desire Disorder" (HSDD), replacing the clinical assumption of "inhibition" with a term signaling variation from the norm, "hypoactive." (25) As presented in the DSM-IV--versions of which held strong for nearly two decades, from 1994 to 2013--the "essential feature" of HSDD is "a deficiency or absence of sexual fantasies and desire for sexual activity." (26) Notably...