Compulsory sexuality.

• Author: Emens, Elizabeth F.
• Position: Asexuality as means to broaden antidiscrimination law framework - III. Asexual Law and Our Sexual Law through Conclusion, with footnotes, p. 345-386

3. ASEXUAL LAW AND OUR SEXUAL LAW

It's funny to think about. You know, you've got the gays marching for the right to be cocksucking homosexuals, and then you have the asexuals marching for the right to not--do anything. Which is hilarious. Look, you didn't need to march for that right. You just need to stay home, and not do anything.

--Dan Savage (250)

The rise of asexual identity, discussed in the previous Parts, underscores how powerful a grip sex and sexuality have on our current world. Sex is so important that even those who are not interested in doing it with other people feel a need to organize and express their identity in terms of that lack of interest in sex. The demand that we identify and confess our sexual selves is so powerful that it extends even to those whose deepest sexual secret is that they're "just not that into [it].' (251)

Why is this the moment for the emergence of an identity organized around a lack of attraction? It is interesting to speculate. Incidental factors presumably played some role, as others have surmised: most notably, the charisma (and possibly the maleness (252)) of David Jay, the emergence of the Internet as a forum for social connection, (253) and the media attention surrounding Bogaert's one percent finding. (254) More broadly, perhaps the prohibitions on sexual expression have dropped away to such an extent that no one could escape the demand to speak some kind of sexual truth; perhaps the cultural pressure for sexual identification had to grow strong enough for a countervailing identity to form. (255) When gays were expected to be in the closet, (256) or women were expected to have sex out of duty only, (257) then a lack of sexual attraction would have blurred with many other conventional postures. But once women are expected to be sexual beings, (258) and gays are expected to come out, (259) then few closets remain. (260) In this context, the one who does not share the sexual dispositions of her neighbors--like the atheist or agnostic in a profoundly religious community (261)--may feel impelled to speak her truth and to convene allies to seek recognition for their mutual experience of alienation from pervasive assumptions.

However precisely it happened, asexual identity has emerged as a striking challenge to a prominent religion of contemporary U.S. society--sexuality. Asexual self-elaboration therefore offers a fascinating lens through which to view our legal system's relationship to sex.

The lines from Dan Savage in the epigraph, though comic, contain a serious claim: Savage implies that asexuals don't need anything from the law. And his perspective is not unusual; asexuals are often seen as beyond the law. (262) Is Savage right?

Savage assumes a particular understanding of legal advocacy: rights claims predicated on a history of legal prohibitions. This model does not map neatly onto asexuals, who have not been subjected to the kinds of legal strictures applied to homosexuals. (263) The problem here is not the lack of fit between asexuality and the law, however, but the narrowness of Savage's conception of law. This view fails to recognize the range of subtler regulatory functions of law, some of which operate to the detriment of asexuals, while a few may accrue to their benefit, as this Part will show.

What kinds of legal projects might asexuals want to pursue? Most prominently, some self-identified asexuals have begun to lobby for inclusion in federal antidiscrimination law, through the proposed Employment Non-Discrimination Act, which aims to prohibit employment discrimination on the basis of sexual orientation. (264) This Part will consider this effort in more detail, as the most developed legal endeavor of the asexuality movement thus far and the one with extant legal precedents. (265) But antidiscrimination law is only one of many possible legal routes that advocacy and thinking about asexuality might travel.

Our legal system assumes sexuality in a range of ways. This Part sets out a framework for identifying and analyzing types of interactions between law and asexuality. The aim here is twofold. First, this framework should serve as a toolkit for advocates and thinkers about asexuality, as they consider what areas of law, if any, they might want to try to change. Second, the framework shows how asexuality can operate as a diagnostic tool or heuristic for identifying the ways that law's interactions with sexuality affect the broader society. (266) Namely, asexuality invites us to see the implicit sexual baselines in our sexual law that affect not only those people whose experience is in some significant sense asexual, (267) whether or not they identify as asexual, [268] but that also help to constitute everyone else's sexuality in ways they are unlikely to see.

This next Subpart provides the analytic toolkit of interactions between asexuality and the law, and the rest of this Part applies the tools.

1. Asexuality's Interactions with Law: An Analytic Framework

   This Article began by characterizing asexuality as the middle child of the sexual orientation family. In one sense, this is true: asexuality has been overlooked until recently, overshadowed by its more prominent siblings--heterosexuality, homosexuality, and bisexuality--which have drawn more explicit praise or blame than their less active peer. In another sense, though, the analogy to birth order is inapt. The inattention to asexuality has arguably been a more genuine form of benign neglect than middle children stereotypically complain plain of, (269) or than other outsider groups typically experience. Consider disability, which courts and commentators often associate with benign neglect in the form of inaccessible buildings, homes, and communities. (270) As various commentators have pointed out, it is hard to view as entirely benign the structural exclusion of people with disabilities in a society that has warehoused, sterilized, and in various ways attempted to avoid the creation and the participation of members of the group. (271) Asexuality, however, seems to have been genuinely overlooked or unrecognized, if not simply illegible, until very recently.

   With regard to homosexuality, Justice Kennedy asserted in United States v. Windsor (272) that the idea of "equal dignity" through marriage for same-sex couples was a new "concept" of late, leading some people to "a new perspective, a new insight." (273) Whatever the merits of this claim about same-sex marriage as a conceptual breakthrough, the idea of people desiring their own sex is far from a revelation in a society that has passed laws outlawing homosexual activity and that has engaged in explicit exclusion, punishment, and attempted conversion of homosexuals. (274)

   Asexuality, by contrast, is more plausibly a new concept for many people. In a culture that assumes that sexuality is the deep secret of everyone's identity, the idea of asexuality can seem like a genuine revelation. (275) Asexuality therefore offers the possibility of revealing unarticulated assumptions embedded in our law and culture. (276) This Article thus far has attempted to expose some of these assumptions. (277) This Part aims to push those insights further and to develop a framework for analyzing asexuality's interplay with law.

   This Part puts forward a typology of four types of legal interactions with asexuality:

   (1) legal requirements of sexual activity;

   (2) legal exceptions to shield sexuality from commodification;

   (3) legal protections from others' sexuality; and

   (4) legal protections for sexual identity.

   Note that by beginning this typology with sexual requirements, I am passing over what is arguably the harshest form of legal regulation of sexuality: legal punishment of particular sexualities or of sex acts important to particular individuals. (278) As the focus here is asexuality, however, and asexuals have not faced this kind of legal burden, (279) I do not include this category.

   Nothing in this analysis presumes the effect of these legal structures on asexuality, nor presumes that any legal change (or what sort of legal change) would be desirable from an asexual perspective. The purpose here, as noted earlier, is to offer tools for advocates and thinkers focused on asexuality and to provide a framework for a broader set of readers to use asexuality to recognize unstated legal assumptions that help to constitute sexuality more generally. Each of these categories warrants an inquiry encompassing questions such as the following: In a society such as ours, with a small number of people self-identified as asexual, what is the impact on asexuals of this legal interplay with sexuality? In addition, what is the impact on people whose experience, right now or across time, is largely asexual, but who are not identified as such? Moreover, what is the effect of this legal structure on sexual people? (280) Finally, if most or all people were asexual, does it seem likely that the law would still work this way? The last question, though a speculative counterfactual, offers a mechanism for trying to root out the role of sexuality per se in the legal norm.

   The rest of this Part considers each of the categories of legal interplay listed above with no pretense of addressing all the key questions, but instead with the aim of highlighting several key points about each. The most attention is devoted to the final category, antidiscrimination law, because of its current political prominence.

2. Legal Requirements of Sexual Activity

   The most striking aspect of a legal regime, from the perspective of asexuality, would be any legal requirements of sexual activity. As noted earlier, some (typically romantic) asexuals do have sex, but as part of the give-and-take of a relationship, not because of sexual attraction. (281) Therefore to have any legal benefits depend on sexual activity could be a substantial burden on many asexuals as well as anyone else who is not having sex, whether...