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,  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.
A. 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.
B. 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 by inclination or decision.
1. Marriage law
Legal marriage confers numerous benefits and responsibilities, some of them unique to marriage and some merely obtained efficiently through marriage. (282) As a general rule, marriages are valid even without sexual consummation. (283) But in several ways, legal marriage effectively requires consummation for its fullest ratification. For instance, in some states, nonconsummation of a marriage is a ground for voiding the marriage. (284) And while fraud is not generally grounds for voiding a marriage, fraudulent intent "not to consummate the marriage or not to have intercourse likely to produce progeny" can be. (285) Also notable is the fact that many states make impotence a ground for annulment, (286) whereas infertility is not an independent ground for annulment in any state (unless misrepresented or concealed), perhaps suggesting that sex per se matters more to marriage than reproduction. (287) In the immigration context, failure to consummate, by itself, does not render a marriage a "sham marriage." (288) But under immigration law, "proxy marriage"--in which the spouses are not both physically present for the marriage ceremony--are not recognized unless they are subsequently consummated. (289) In several ways, then, marriage law effectively requires sexual activity. (290)
How does this aspect of marriage law affect asexuals? On one level, the kind of sexual requirements attached to marriage in this country probably have little direct effect on asexuals who are open about their asexuality. Failure to consummate renders a marriage voidable, not void, so the other party would have to want to void the marriage for this provision to be activated. (291) If an asexual were open about her asexuality prior to marriage, then the other party should have little reason to complain. On the other hand, we know that, when marriages break down, former spouses can invoke the law in ways they would not have expected before marriage, out of spite or a desire to save money. Thus, this provision for voiding the marriage for lack of consummation creates a vulnerability for asexuals (or rather, for those asexuals who don't have sex, which is not all asexuals (292)).
On the other hand, a provision for voiding a marriage for lack of consummation might seem useful protection for sexuals--who might reasonably expect sexual consummation in a marriage in this sexual culture--against asexuals who are not open about their asexuality. But if the idea is to force information about sexual intentions, then the law should narrowly target the disclosure point: sexual consummation should be treated like infertility in some states--not a ground of annulment unless misrepresented or concealed. (293)
2. Looking beyond conjugality in marriage and its alternatives
Marriage law formally recognizes and attaches legal significance to a deeply significant social institution. Even if marriage law does not technically require sex--and even if the law were changed so that lack of consummation did not render a marriage voidable without misrepresentation in any jurisdiction, as discussed above (294)--the legal significance of a social institution deeply linked with conjugality surely affects asexuals. Fewer asexuals marry than sexuals, studies suggest; for instance, Bogaert found that approximately twice as many sexuals as asexuals were married. (295) If true, then marriage law has a disparate impact on asexuals.
That said, asexuals can marry and do marry, particularly romantic asexuals. Asexuals may increasingly choose to marry (perhaps especially each other (296)) if they continue to self-identify and to grow as a movement. The link between marriage and being a sexual person therefore should not be overstated here, but some disparate impact is hard to ignore.
Aces may therefore be prime candidates to support the movement to abandon marriage as a legal institution or to replace it with any number of alternatives explicitly organized around a principle other than conjugality. (297) The many alternatives that scholars and activists have examined include privileging dyadic caregiver relationships, (298) recognizing friendships or other close familial and nonfamilial relationships, (299) moving to a contractarian regime, (300) or replacing marriage with a similar domestic partnership or civil union regime. (301) Important recent work shows how law's privileging of sex in the context of intimate relationships "devalues both sexual relationships that lack an intimate component and intimate relationships that lack a sexual component." (302) These debates over marriage and its alternatives, which I have examined at length elsewhere, consider the interests of a wide range of people, including polyamorists, singles, committed friends, extended family networks, and many others. (303) Asexuals have a significant, though not unique, stake in these debates.
Finally, thinking about asexuality in relation to legal requirements of sexual activity underscores an important point about domestic partnership regimes. As Mary Anne Case has aptly observed, domestic partnership regimes often impose stricter requirements on participants than do traditional marriage regimes. (304) Marriage has strict conditions for entry (most notably, the requirement of one man and one woman in most jurisdictions), but once inside the institution, spouses are typically given substantial freedom to structure their relationship as they choose. By contrast, domestic partnership regimes often impose requirements such as cohabitation, shared finances, and monogamy. (305) Some even appear to require sexual consummation. (306) An off-the-rack legal status can be a simple and cost-effective way to secure a relationship, (307) and because domestic partnership regimes evade the cultural meanings of marriage, they may be particularly appealing for romantic (or otherwise partnering) asexuals. Protecting the interests of partnering asexuals is therefore another reason to organize alternatives to marriage around principles other than conjugality.
C. Legal Exceptions to Shield Sexuality
In select domains, rather being required by law, sex is specially protected from incorporation into law. Parties are prohibited in various ways from creating contracts about sex, thereby setting sex apart as relatively noncommodifiable. (308) This Subpart uses the perspective of asexuality to analyze two types of legal exceptions for sex: sex work and Marvin agreements. In both domains, the reasons for excluding sex from legal agreements are many, including general associations of nonmarital sex with vice. But the debates in these areas also partake of a privileging of sex as particularly warranting protection from the taint of legal and financial exchange.
1. The sex work debates
One might assume that asexuals have more interest in avoiding sexual attention than do sexuals. As noted earlier, though, for sex-indifferent asexuals, other people's sexual desires are a matter of little importance, something to be ignored or tolerated rather than avoided. (Relatedly, one might ask who is most bothered by sexually provocative clothing in the workplace: possibly someone who finds it arousing and therefore distracting.) Some asexuals do report being annoyed or aggravated by sexual content--averse to it, in the language employed earlier--but others just consider it meaningless noise. (309) The possibility of people who truly don't care about sex could call into question some commonplace assumptions, for instance, about sex work, which has been the subject of extensive debate.
On the one hand, some policymakers might be more troubled by the idea of sex work performed by people who never feel sexually attracted to others. On the other hand, if the sex worker has no desire to have sex with others on different, noncommodified terms--if she is a sex-indifferent asexual--some policymakers might find it easier to see sex as simply a job for her, without anything inherently degrading about it. The latter view would be consistent with work by Martha Nussbaum and others who argue that sex is not inherently more demeaning than many other kinds of physically intense or tiring work, such as plucking chickens. (310)
Relatedly, one might think here of the literature suggesting that lesbians are disproportionately represented in erotic dancing and other forms of sex work for male consumers. (311) One researcher concluded that lesbians are better suited to this work because "they are not attracted to men. Lesbian informants shared that they felt dancing was easier for them than it would be for a heterosexual woman because they can sustain a clearer boundary between the work of feigning desire for men and the more 'authentic' desire they feel for women." (312) These lines point toward an argument that might apply even more robustly to asexuals than to lesbians: that is, sex work need not look as troubling if it has no overlap with something the worker considers especially meaningful. None of this is an argument for encouraging sex-indifferent asexuals to enter sex work, nor do I mean to suggest that many asexuals would find this an appealing job. Moreover, this discussion does not resolve the many complicated issues-including concerns about exploitation, consent, safety, and public health-surrounding the criminalization or regulation of sex work. (313) Instead, the point is only that the sex work debates look rather different when considered in light of the fact that there are some people who, contrary to the assumptions of our sexual world, simply do not see sex as anything special.
2. Marvin and nonmarital agreements
Parties can create explicit or implicit nonmarital cohabitation agreements encompassing many aspects of their relationships. (314) Through a doctrine associated with the case of Marvin v. Marvin, these agreements are generally enforceable so long as sexual activity is not part of the consideration for the agreement. (315) One might think this is just a sensible restraint on what kinds of activities individuals can require of each other, but recall that contractual remedies are generally compensatory, not specific, and specific performance is not an available remedy for personal services contracts. (316) In other words, no U.S. court would order someone to have sex to perform her obligations under a contract. But failure to perform under a contract could lead to damages, so if contracts for sex were enforceable, then damages could be awarded for failure to have sex. This may sound disturbing to sexual ears, but consider it from the perspective of asexuality.
As just discussed, for sex-indifferent asexuals, sex is not particularly different from other kinds of physical contact, other than that other people feel so strongly about it. If sex is not anything special, an asexual of this stripe might ask, why should sex be treated so differently from most everything else in law? The law of contracts, in principle at least, prides itself on not looking inside the "black box" of consideration--leaving it to parties to place their own valuations on particular deals. (317) Sex is one notable exception to that general principle.
While this sex exceptionalism in contract law might seem foreign to some asexuals, would eliminating it have any practical significance? This legal carve-out for sex might matter for asexuals in at least two ways. First, some self-identified asexuals might want to make legally binding agreements with romantic (or possibly aromantic) partners that state precisely what contributions each partner will make to the relationship. These might explicitly include or exclude sexual activity. (318) In a legal system that refuses to enforce contracts including sex, these partners could not expect enforcement of a term containing promises of sex in exchange for something else--but neither could they be entirely certain that a term excluding sex (for instance, a promise that neither partner ever request sex) would be enforced.
Second, and more generally, treating sex as special under law may do more than reflect the assumptions of a sexual society; rather, special legal treatment for sex may reinforce the specialness of sex as a cultural matter. This is an empirical question, and one that would be very hard to test. But hypothetically speaking, it seems not implausible that creating special carve-outs for sex contributes to the special meaning that sexuals place on sex, which in turn leaves asexuals, self-identified or not, on the outside.
D. Legal Protections from Others' Sexual Expression
Several areas of law protect some individuals from other individuals' sexual emanations. For instance, sexual assault law assigns harsher penalties to unwanted touching and other interaction than non-sexual versions of those same interactions would trigger. (319) Obscenity law shields people from others' sexual expression and body parts. (320) This Subpart focuses on two types of legal protection against sexuality: the way the law shapes our physical environment around sexual assumptions and the way sexual harassment law has reduced sexual content in the workplace.
1. Sexuality as legal architecture
Much of our physical architecture is divided up by sex--male and female--on an implicit presumption of sexual desire between the two. We can see this in many places: bathrooms, locker rooms, dressing rooms, camp cabins, and prisons, for example. Most of us encounter sex-segregated spaces every day. Problems with this structural feature of our lives have been observed and examined elsewhere: it burdens trans and other people who do not identify as male or female, it assumes that desire travels across sex (as in male and female), and it stereotypes the sexes down to the emblems typically used to represent men and women on bathroom doors. (321) An asexual perspective also shows up the extent to which this segregation organizes us around (our presumptive) sexual desire.
These structures of sex(ual) segregation look particularly curious in light of one unusual variation on them: the special unit for gay inmates in the L.A. County Jail. (322) Russell Robinson recently published a compelling account of the jail's practices for selecting who is gay enough to qualify for the special unit. (323) What does this special jail look like through the lens of asexuality? Not particularly appealing, in its current incarnation. Though the special unit is designed to protect gay inmates from predators, it is also a space organized around the sexuality of the inhabitants, whose (gay) orientation is (superficially at least) toward each other (as men). An asexual might also like sexual-orientation-based segregation, but organized around the umbrella categories of sexual and asexual. Then again, any other inmate concerned about sexual victimization might also prefer to be in the asexual prison, leading to the selection
problems allegedly faced by the L.A. County Jail. (324) Moreover, separating the jail into sexual and asexual units presumes that sexual people know, when they're entering prison, whether they're going to want to have sex there. (325) This scenario raises a host of interesting questions--about the potential for affinities among asexuals, about predatory affinities for asexuals, and about platonic (self-protective) affinities for asexuals.
This final point about affinities for asexuals, among those wishing to avoid a sexually desiring gaze, highlights a way that the culture of sexual privacy could favor asexuals. (326) In a world with growing awareness of homosexuality, people may become increasingly dissatisfied with the illusion that the desiring gaze is evaded through institutional segregation based on sex (as in male versus female). Some people might instead prefer the opportunity to request asexual prison guards--"ace" guards, in a fitting use of the slang term 327--and, for that matter, ace airport security, ace police officers, ace doctors, ace nurses, and so on. (328) Perhaps an employment niche is emerging that could favor asexual candidates.
2. Sexual harassment law
Broadly speaking, asexuals appear to be beneficiaries of sexual harassment law. In a relatively short period of time, the law in this area has irreversibly changed our understanding of a set of workplace interactions. Sexual interactions once commonplace have now become inconceivable to many people. This is one area where--for better or worse, depending on whom one asks (329)--law has undoubtedly had an impact on culture. (330) In the context of sexual harassment, as with many other things, "[i]t is hard to unthink what you know." (331)
For people who don't feel sexual attraction, the introduction of laws that deter some subset of sexual behavior or expressions of sexual desire in the workplace would appear to be a welcome change. Vicki Schultz and others have decried the "sanitized workplace" resulting from sexual harassment law. (332) But to those who feel little or no sexual attraction, a sanitized workplace might well look pretty good. (333)
Asexuality has even been mentioned by the Supreme Court in a case in this area. Paradoxically, this explicit mention is an example of how asexuals are written out of law. In Oncale v. Sundowner Offshore Services, Inc., which held that same-sex harassment could be "because of ... sex" and thus actionable, Justice Scalia tells us that "It]he prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment." (334) Of course Justice Scalia doesn't mean the identity asexual, as discussed in this Article; instead, his disavowal of asexuality reflects the pervasive sense that the law in this area is a tradeoff, where we endure extensive limitations on sexual expression in the workplace in the interest of protecting vulnerable parties from unwelcome sexual content. The asexuality perspective highlights--very differently than the sex-as-danger feminists (335)--how the framing of this debate assumes that sexual expression and interaction are a social and individual good. Courts' particular emphasis on punishing sexual content has been criticized by Schultz, at least in part because the "desire-dominance paradigm" leads employers to strip the workplace--where we spend so much of our lives----of a vital part of our being. (336)
Justice Scalia's line from Oncale about asexuality illuminates controversial aspects of sexual harassment law: namely, the unwelcomeness requirement and the objective prong of the hostile work environment analysis. On the first, scholars have criticized the requirement that a plaintiff prove that the alleged harassment was unwelcome, as if some harassment is welcome. (337) A challenge for these scholars is addressing the assumed fact that some sexual attention is desired by everyone in some context; in this light, critics ask, how should a supposed harasser, or a judge after the fact, know which attention is not desired? (338) Asexuality belies that assumption of universal sexual interest. On the second, much writing has critiqued the reasonable person standard in this and other contexts. Sexual harassment law confronts the particular problem of deciding whose perspective is used to determine whether conduct is "objectively offensive." (339) Here, some courts and scholars have argued that we should have something closer to a "reasonable woman" standard for sexual harassment law, to counteract the implicit (and historic) "reasonable man" standard that courts may otherwise employ. (340) Whatever the merits of these arguments, what Justice Scalia's remark in Oncale indicates is that we have a reasonable sexual person standard. The whole structure of the tradeoffs we imagine sexual harassment law to attempt to balance (successfully or not) assumes some reasonable level of sexual interaction, which is greater than zero. This is understandable, as most people apparently are sexual, but the perspective of asexuality forces us to ask if it is desirable and from whose perspective.
Do legal protections against others' sexual expression benefit asexuals? At first glance, they appear to, since asexuals--self-identified or not--presumably have little direct interest in that sexual content. On further reflection, however, some asexual interests come into focus. Recall that asexuals have diverse attitudes to sex, including not only sex-aversion and sex-neutrality but sexpositivity. (341) Sex-positive asexuals may have an interest in the availability of nonnormative sexual literature, film, and conversation, for the reasons discussed earlier about the alignment of the interests of asexuals with polyamorists and other sex-positive folks. (342) Moreover, discussion of asexuality may sound to some uninformed sexuals like unconventional "sex talk," giving asexuals of many stripes a direct interest in fewer strictures on expression conventionally viewed as obscene. (343) In addition, asexuals might have an interest in doctrinal transparency. The areas of law dedicated to protecting some people from others' sexuality tend not to eradicate sexual content, but to attempt to strike a balance, as the sexual harassment discussion above exemplifies; that balance is likely to assume a reasonable sexual person as the baseline. (344) While asexuals may not want greater legal strictures on sexual content, for the reasons just discussed, they might well want a more explicit acknowledgement of the sexual assumptions embedded in these doctrines. (345) Explicit attention to those sexual assumptions would facilitate a more honest examination of their effects on many individuals, not only asexuals.
E. Legal Protections for Sexual Identity
Antidiscrimination law was probably what Dan Savage had in mind when he called the idea of asexuals marching for rights "hilarious." (346) It is also the legal arena with the most action around asexuality thus far, as asexuality is already a protected category under the laws of one state and several municipalities, and some asexual activists recently submitted a memo to select LGBT groups arguing for the inclusion of asexuality in the proposed Employment Non-Discrimination Act. (347) For all these reasons, the prospect of antidiscrimination protection for asexuality warrants a more involved discussion. This Subpart therefore considers how asexuality made it into New York law, the merits and stakes of including asexuality in antidiscrimination law, and the prospects for further movement in this direction.
1. Asexuals enter state law: New York's Sexual Orientation Non-Discrimination Act
New York's Sexual Orientation Non-Discrimination Act (SONDA) defines "sexual orientation" as "heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived." (348) New York is the first, and so far the only, state to protect asexuality. (349) The story behind this aspect of SONDA has not been written. Indeed, several of the key players in the legislation whom I consulted told me that I was the first person who had ever asked about asexuality's presence in the law. (350) Several U.S. localities have also passed antidiscrimination laws that cover asexuality. (351) Most of these are in New York, starting with Albany, which enacted a law covering asexuality in 1992, ten years before the state-level SONDA went into effect; more recently, though, several local laws including asexuality were passed in other parts of the country, and U.K. hate crimes law was interpreted to cover asexuality. (352) The story of how asexuality made these and other legal inroads is complicated and intriguing, but limitations of space preclude a detailed account here. (353) As context for the normative discussion that follows, however, this Subpart briefly explains how asexuality became part of New York's SONDA, still the only state antidiscrimination statute to protect this emerging identity category.
Asexuality was introduced not in response to asexual organizing or activism. The legislative history of SONDA is silent on the meaning of asexuality in the law, as are current explanatory materials, (354) but according to individuals who were involved in the passage of the legislation, (355) the category of "asexual" was introduced into SONDA, along with "heterosexual," to broaden the perceived scope of the bill beyond gays and also, by delineating the covered groups, to defend it against slippery slope arguments. (356) The previous version of the SONDA bill protected "sexual preference." (357) According to former Assemblymember Steve Sanders, who was the bill's sponsor, some assemblymembers contacted him to say that the term was problematic because it implied that sexuality was a choice. (358) In the same period, several people involved in the work on SONDA told me, opponents were casting the law as "special rights" legislation for gays (359) and trying to "derail" the debates about gay rights protections with slippery slope arguments about "paraphilias." (360)
In the late 1980s, (361) in response to these arguments, (362) SONDA's proponents rewrote the language to cover "sexual orientation" and included in its definition "heterosexuality" as well as "asexuality." (363) The purpose was to convey that SONDA wasn't a law to protect gay people because it protected everyone (364) and was not about sex but orientation. (365) There wasn't a "specific purpose" to protect asexuals; rather, the proponents were "just going through the categories of what [we] considered to be sexual," "trying to include more and a lot of categories of how people express themselves sexually, or don express sexuality." (366) "There wasn't any particular case," Sanders remembers. "It was just a category; we decided it was a category." (367)
"I'd like to tell you that we were visionary," Former Assemblymember Sanders remarked when I brought up the subsequent development of an asexual rights movement. (368) But Sanders declined to claim such a vision. Rather, asexuality was included in SONDA for rhetorical and political purposes related to passing the law to enshrine gay rights. This account thus echoes popular accounts of the presence of "sex" in Title VII, except that asexuality was introduced by proponents to save SONDA, while sex was ostensibly introduced by opponents to sink Title VII. (369) That said, Former Assemblymember Sanders--who may have been the one to think of including asexuality in the law (370) remarked to me that he never considered it "controversial" that some people are asexual. (371)
Though SONDA passed over ten years ago, in 2002, (372) no cases have been published or apparently even filed under SONDA on the basis of asexuality. (373) The next Subpart considers what asexuality-based claims might look like and addresses whether our laws should permit such claims.
2. Antidiscrimination protection." a normative assessment
New York law's formal incorporation of asexuality--as well as the handful of local antidiscrimination laws that cover asexuality--raises the question of whether other jurisdictions should follow suit. Twenty-one states and the District of Columbia offer antidiscrimination protection on the basis of sexual orientation, (374) with nearly all defining it to include heterosexuality, homosexuality, and bisexuality. (375) And while federal law does not cover sexual orientation, the versions of the proposed Employment Non-Discrimination Act (ENDA) recently before the House and Senate define the protected "sexual orientation" to mean only "homosexuality, heterosexuality, or bisexuality." (376) Some asexuals have proposed including asexuality. (377) Should ENDA and laws in other jurisdictions embrace asexuality within their ambit? This Subpart considers that question from the perspective of asexuals, self-identified and otherwise, and sexuals.
a. Discrimination against asexuals
A common response, when people encounter the idea of asexuality, is to suppose that it does not inspire discrimination. Why, one might ask, would anyone discriminate against an asexual? Asexuals don't pose any sexual risk; they aren't (a)sexual predators, forcing others to participate in their deviant practices. Indeed, they don't, as a group, represent any physical practices at all, and thus they seem unlikely to trigger disgust. (378) They don't violate religious prohibitions, at least not in the way that homosexuals or bisexuals do. (379) They don't have any obvious job-related impairment or perceived need for costly accommodations. (380) The fact that no cases have been filed based on asexuality under New York's SONDA seems consistent with the view that asexuality does not provoke discrimination.
Interestingly, though, some very recent data suggest that asexuals are disliked and disdained in many of the same ways that homosexuals and bisexuals are, and even to a greater degree in some contexts. (381) A 2012 study of heterosexual subjects found, "[a]ttitudes toward homosexuals, bisexuals, and asexuals were more negative than attitudes toward heterosexuals, revealing a sexual minority bias. Within sexual minorities, homosexuals were evaluated most positively, followed by bisexuals, with asexuals being evaluated most negatively of all groups." (382) In addition, subjects viewed asexuals as less human than homosexuals and bisexuals. (383) Finally, student subjects reported being less willing to hire, or rent to, asexuals than homosexuals (or heterosexuals). (384)
These data run contrary to the expectation that asexuals would not face discrimination. Why, then, would there be no cases yet under New York's SONDA? One explanation is that very few asexuals are "out" (i.e., open about their asexuality) at work, so they are unlikely to provoke discriminatory responses. (385) Indeed, the one other, smaller study of discrimination against asexuals suggested that, while asexuals had had few experiences of discrimination at work, the paucity of their discrimination experiences neatly tracked how few of them were out to coworkers or supervisors. (386)
Moreover, without expecting discriminatory impulses to be rational, (387) we can conceive of partial answers to the assumption that asexuality wouldn't inspire discrimination. For instance, homosexuals are not only threatening to those they proposition sexually, but also to those who might fear exposure for their own similar tendencies; hence the term "homophobia," which captures a fear of the other in the self. Likewise, asexuality could be threatening to those who fear it in themselves, as discussed earlier in relation to the universalizing model of asexuality. (388) The fact that many asexuals have sex with themselves, but not with others, could seem a disgusting sexual "lifestyle" to some. (389) Some asexuals also offer anecdotal accounts of harassment or assault in response to revealing their asexuality, with some reporting that "corrective rape" is a real threat for asexuals. (390) On the religious front, asexuals' inclinations seem in tension with injunctions like "Be fruitful and multiply," leading to anecdotal reports of asexuals being judged harshly by some strongly religious people. (391) And if asexuals are viewed as less human than other groups, as the recent data suggest, (392) then, by definition, asexuals labor under a "stigma." (393) Stigma could affect employers' expectations of performance or desire to interact with asexuals on the job. Such fraught interactions are consistent with the reports by asexuals, discussed in Part II, of feeling repeatedly hurt and frustrated by the expectations of the sexual world, particularly when sexuals doubt the truth or legitimacy of asexuals' identity. Outsiders' doubts reflect asexuals' position on the margins of a society that treats a person's sexuality as central to the truth of her identity. (394)
b. The stakes of recognition
The law is a powerful tool for validating the identity claims of marginal groups. (395) In this way, the potential benefits of legal recognition for self-identified asexuals (and those who might so identify in the future) are not difficult to see. For a group that struggles to be believed as ingenuous rather than self-deceiving--that wants outsiders to stop assigning reasons for their asexuallity "besides asexuality" (396)--legal classification could usefully rebut the demand for explanations by helping to substantiate asexuality as a minority identity. (397) Moreover, the imprimatur of law could help support asexuals' efforts to reduce the stigma of asexuality by making it seem more legitimate. Finally, increasing legal recognition could generate publicity for asexuality and thus begin to crystallize the identity in the public imagination.
Legal recognition of asexuality would also have implications for people who are not asexual. If asexuality lies on a spectrum, (398) then the people with the most to gain from recognition of asexuality are those who feel less than fully identified with the sexual end of the spectrum. These potential gains have three dimensions: publicity, legitimation, and innovation. First, public recognition of asexuality could help draw attention to human variations in the quantity axis of sexual desire, creating publicity for the issue of diminished desire and helping people to recognize it in their own lives. (399) Second, legal recognition could help to take some of the stigma and shame out of the experience of having less desire than the cultural norm, both because the law's imprimatur can seem to confer approval, as noted above, and because broader legal recognition may inspire more asexuals to come out publicly, whether to support these laws or to bring suit. Those in the middle of the spectrum may feel more comfortable acknowledging their own fluctuating or diminishing feelings of attraction, if some group of people claims asexuality with pride. (400) Finally, more public attention to asexuality might help to generate attention and public support for innovations in relationship forms, such as "Boston marriages" or other forms of committed friendships, whether or not their participants are asexual per se. (401)
It is worth noting that recognition can also come with costs for group members and others. Legal as well as cultural recognition can ossify the group identity, leading to rigid and inflexible boundaries around the group. (402) Relatedly, legal recognition can lead to litigation disputes about who is in and who is out, bolstering particularly narrow definitions of group identity. (403) This is the double-edged sword of recognition: just as a group may hope that the positive connotations of legal recognition will bleed into improving cultural status, the group should also worry that rigid definitions and policing of the boundaries of the category can bleed over to confine the social identity. In addition, increasing recognition and even approval of asexuality might give some sexual people an excuse to hide from, or otherwise not explore, their own, or their partners', sexuality. (404) Although minority recognition can be empowering for some, backlash effects can also bolster stigma or pathological diagnoses and thus increase anxiety about any overlap with the stigmatized identity. (405) Finally, growing legal and cultural recognition means a greater opportunity for stereotypes to develop about the group. When few people know about asexuals, theories and misconceptions about them are likely to be fewer and weaker; with growing recognition, groups potentially face more rigid appraisals from outsiders.
c. Legal implications: will there be any cases?
In light of the absence of asexuality-based cases brought under New York antidiscrimination law, (406) we might reasonably wonder if there are any plausible cases of asexuality-based discrimination. Would asexuals bring employment discrimination cases, for instance, or is this debate purely about the politics of recognition? (407)
We can imagine four types of workplace discrimination against asexuals. The most obvious is animus based. For instance, an employer might not like an asexual because asexuality seems "weird." Here, asexuality might be like a person's being a vegan or a Wiccan; it's sufficiently outside the mainstream that some people may be uncomfortable with its otherness. (408) Any number of justifications might be given for this, for instance, that the problem is not asexuality per se but an asexual's decision to talk about it. (409) Thus, an animus-based claim seems plausible, particularly as more asexuals come out about their identity.
Second, an asexual employee might be harassed or fired for saying she's asexual or merely for behaving asexually. The prototypical version of this may look different for female and male asexuals. For females, the asexuality could be perceived as an affront or a challenge to a sexual supervisor, akin to male harassment--or even violence--toward lesbians for sexually rejecting them. (410) For males, the asexuality could be a failure of manliness that offends a masculine environment. One might think here of the facts of Oncale, where an apparently effeminate man was verbally and physically assaulted by other members of the all-male ship's crew, (411) or more pointedly of Goluszek v. Smith, in which a male employee "with little or no sexual experience" who "blushes easily and is abnormally sensitive to comments pertaining to sex" was subjected to taunting vulgarities and physical abuse by male coworkers. (412) (Both scenarios could of course occur to the reverse sex, though less stereotypically.) If the harassment met the standard of "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment," (413) then sexual harassment law would likely cover the asexual employee, whether or not asexuality is expressly covered, even though "severe or pervasive" is a fairly high bar in most jurisdictions. (414)
Third, with more public awareness of asexuality, stereotypes could develop that would shape job prospects. For instance, because there is apparently a small correlation between autism spectrum disorders and asexuality, asexuals might be stereotyped as having these impairments or being generally awkward in social interactions. (415) Employers might also assume that asexuality means a lack of sexual experience, which could be thought important to certain kinds of jobs, for instance, in therapeutic or mentoring contexts. (416) Whether difficulty interacting or a lack of sexual experience is a legitimate basis for job discrimination would depend on the particular job requirements, but neither of these is necessarily linked to asexuality in any given individual. Thus, assuming them for a particular job applicant would likely be impermissible stereotyping under the structure of our employment discrimination laws if asexuality were protected. In theory, there could be jobs for which being "sexual" rather than "asexual" would itself be a bona fide occupational qualification (BFOQ), though it is hard to think of many (legal) ones of this sort. (417) Notably, even sex work, in the forms and places where it is legal, is not an obvious case for the BFOQ of experiencing sexual attraction, as the discussion earlier in this Part suggests. (418)
Finally, workplace policies that pay for spousal and family benefits could have a disparate impact on asexuals, for the reasons discussed earlier. (419)
d. The case for antidiscrimination protections
In light of the foregoing, there is an argument for protecting asexuality through antidiscrimination law. A recent study indicates that asexuals face bias comparable to, or greater than, that faced by homosexuals and bisexuals. (420) The bias involves viewing asexuals as not quite human, which is a classic feature of discrediting "stigma," as noted earlier. (421) In addition, this research suggests that the bias includes an impulse to make decisions on this basis, for example, not to hire or rent to asexuals. (422) This research is new and limited in scope, but if it holds up to scrutiny and is confirmed by further studies, it would help support an argument for legal protection for asexuals. More generally, asexuals are positioned on the margins of a society, and of a legal system, that privileges sexuality as specially important to human lives. (423)
While no discrimination cases have yet been brought on the basis of asexuality in New York, we can at least envision several grounds for such claims, particularly if more asexuals begin to come out. (424) Moreover, recognition of asexuality could have various cultural and emotional benefits for asexuals and for those who do not identify as asexual, as discussed above. (425) Thus, under familiar principles, asexuals have a plausible basis for seeking legal protection. (426)
Recognizing asexuality in antidiscrimination law could have some costs. Most obviously, any new legal right can impose financial costs on the court system. (427) In addition, rights against employers create potential costs for the employers--not only through any litigation that might ensue but also through human resources and training expenditures (428)--and employers are likely to pass these costs on to employees and customers. (429) More broadly, some proponents of antidiscrimination law may worry that adding new categories to existing protections will water down the impact of the law in this area. Some scholars have argued that we need antidiscrimination law to return to a more targeted focus on foundational or immutable categories, such as race, to consolidate scarce resources, bolster legitimacy, and encourage public confidence in the endeavor. (430) Including asexuality in the law would seem to move protection in the opposite direction, broadening rather than narrowing its scope.
Moreover, asexuality, if it becomes better known, could inspire some favorable treatment--and thus in the long term, legal recognition could possibly lead to prohibitions on such favorable "discrimination" as well. (431) For example, an asexual employee might be expected to be more productive; he will not waste time thinking about sex when he should be working instead. A young asexual female may be relatively protected (rightly or wrongly) from the sex-based assumption that she's likely to have children and leave the workforce intermittently or permanently. (432) An asexual male might be reassuring to employers who have been burned by the high cost or negative publicity of settling or losing sexual harassment lawsuits--or who are merely eager to avoid them. (433) (Indeed, the judge in one very early Title VII sexual harassment case predicted that, if and when such claims were deemed actionable, "[t]he only sure way an employer could avoid such charges would be to have employees who were asexual.") (434) In addition, asexuals in general might be appealing employees and coworkers to those who prefer what Mary Anne Case has called "an incest taboo in the workplace" (435) or specifically for positions involving sexual privacy, as noted earlier. (436) Of course, these benefits of asexuality, like most of the burdens, largely depend on the asexual worker's coming out. Furthermore, several intervening steps would need to occur before legal recognition could possibly constrain these benefits.
In light of the potential costs discussed above and the newness of the data on discrimination, reasonable minds could disagree on whether asexuality warrants protection. But we might at least say that, subject to further empirical findings, there is a plausible case for antidiscrimination protection for asexuality.
3. Prospects for change
This Subpart attempts to evaluate the prospects for asexuality entering antidiscrimination law by sketching a model of the factors associated with statutory legal protection. Table 1 lists these factors.
This model is not a theory of discrimination. Rather, these criteria are descriptive, extracted from antidiscrimination case law, statutes, and scholarly analysis. (437) Moreover, the criteria I describe here do not bind legal actors and may change over time, as I discuss below. (438)
a. The criteria: a brief exposition
The criteria designated as individual are, roughly speaking, immutability and visibility (or activity). Immutability (criterion 1) is a well-known--and widely critiqued---element of suspect-class analysis. (439) The formulation offered here is what has been called the "new immutability," which incorporates not only traits that cannot be changed, but also what society deems too important to ask anyone to change. (440) The other individual criterion--identity characterized by a visible trait or distinct behavior (criterion 2)--reflects the law's tendency to recognize only what can be seen (the visible) or otherwise observed (through conduct). (441)
The political criteria account for the social reality that legal protection depends on group salience (criterion 3) and activism through a significant social movement (criterion 4). Contrary to suspect-class analysis's ostensible demand for political powerlessness, some degree of political power is generally required to obtain legal protection. (442)
The relational criteria capture the importance of pervasive social prejudice to public support for antidiscrimination law. A group generally needs to be subjected to negative public attitudes (criterion 5), limiting or demeaning stereotypes (criterion 6), or both, (443) in order to persuade judges, legislators, and the public of the need for antidiscrimination protections. (444)
Similarly, as to the legal criteria, a history of discrimination is a classic element justifying special judicial solicitude, (445) and, as a descriptive matter, it may help legal actors and the public develop the kind of sympathy that inspires legal intervention. (446) Constitutional doctrine draws a sharp distinction between express or intentional legal burdens (criterion 7) and indirect or unintended legal burdens (criterion 8), (447) despite extensive scholarly critique of this distinction. (448) But both direct and indirect legal burdens can contribute to the public sympathy needed for statutory protection. (449)
b. The criteria applied to familiar categories
The most robust categories of antidiscrimination protection (race and sex) meet all or nearly all of these criteria through their most salient subgroups, while partially protected groups (disability and age) meet fewer criteria, and others meet very few and garner little protection (personal appearance). (450) Space limitations preclude a systematic explanation of the criteria in this Article, but the rough contours of their application to traditional categories should be fairly obvious. A contrast between two less traditional categories of protection that have fared very differently in garnering protection--personal appearance as opposed to sexual orientation--dramatizes their significance, before the next Subpart applies the criteria to asexuality.
Personal appearance discrimination is a favorite topic in debates over the limits of antidiscrimination law. (451) Impressive data suggest that personal appearance leads to serious stratification of opportunities and outcomes--for instance, approximately a ten percent wage gap based on attractiveness. (452) The logic of our antidiscrimination laws would seem to dictate legal protection in this area, as various commentators have observed, (453) yet very few jurisdictions offer such protection. (454) While the lack of legal protection on the basis of personal appearance may seem surprising, it is less so when we apply the eight criteria in Table 1 to this category. Personal appearance tracks no particular identity or social group, nor has there been a well-known social movement on this basis. (455) Though highly visible, personal appearance is frequently within an individual's control, or thought to be SO. (456) Moreover, there is little sense that appearance is too deeply rooted for people to be asked to change it. On the contrary, other than religion-based appearance claims (which themselves often lose (457)), personal appearance is typically treated as quintessentially superficial. (458) The psychological literature documents some negative attitudes and stereotypes toward people deemed unattractive, particularly those considered overweight. (459) But the realm of personal appearance has not been meaningfully shaped by legal burdens, whether direct or indirect, in the way that other categories have been. The history of so-called "ugly laws" has been invoked by scholars as evidence of targeted legal burdens in this domain, (460) though the term "ugly laws" was coined by disability activists, who have been the main promoters of what little notoriety these municipal laws have received. (461) This leads to three--or at most, four, including the limited legal restrictions---out of eight criteria being met by personal appearance, consistent with the absence of constitutional or federal statutory protection, and the lack of local protection in all but one state and seven localities. (462)
Sexual orientation also lacks basic protections at the federal level, (463) yet this category fares very differently than personal appearance on the eight criteria. Sexual orientation is associated with the salient identities of lesbians and gay men, (464) which certainly have a high-profile social movement, involving prominent pride marches and multifarious organizations performing legal advocacy, education, and media policing. (465) Though the classic "invisible" minority, (466) gays meet the individual-trait-or-behavior criterion through the distinct behavior of same-sex sex, which characterizes the group and has been subject to widespread and notorious legal restrictions, in addition to restrictions specifically targeting homosexual status. (467) Whether sexual orientation can be changed, and what causes it, are subjects of some dispute, but a growing consensus reflects the view that no one should be asked to change his sexual orientation. (468) Extensive psychological research documents the negative attitudes toward homosexuality, (469) and stereotypes follow homosexuality, particularly for gay men. (470) On the other hand, it is less clear what kind of indirect legal burdens arise for this category, unless one wants to call marriage restrictions an indirect (rather than a direct) burden. (471) Sexual orientation therefore meets seven criteria. Thus, by contrast to the outcome for personal appearance, this analysis would lead us to expect growing legal protections for sexual orientation. And indeed, ENDA has received substantial support, (472) twenty-one states and many more localities already have sexual orientation antidiscrimination protections, (473) and courts have been moving toward constitutional solicitude on this basis. (474)
c. Applying the criteria to asexuality: difficulties of fit
How does asexuality fare under this model? In the popular imagination, asexuality currently meets very few of the criteria. On the individual level, it is neither visible nor is it associated with any activity. Indeed, as the epigraph from Dan Savage (rather tendentiously) observes, asexuality is defined by "not do[ing] anything." (475) Whether it meets the other individual criterion-immutability--depends on whom you ask: self-identified asexuals would certainly claim that asexuality is not a choice, (476) but the broader culture endorses a medical and pharmacological approach that attempts to cure people with low desire. (477) As to the political criteria, asexuals have begun to connect with one another, but the community is not widespread or well known. (478) And while asexuals have begun to form a political presence--for example, by marching under the AVEN banner in LGBT pride marches--these developments are still in the early stages and have a limited public profile thus far.
With regard to the relational criteria, a very recent study finds striking degrees of bias against asexuals, including a greater unwillingness to hire or rent to asexuals than heterosexuals. (479) Assuming these findings are valid and will be replicated, we can say that asexuals face negative attitudes. There is little reason to think that asexuals face stereotypes at present; however, this is not surprising as a group needs a certain notoriety for stereotypes to develop. Finally, on the legal side, there is no history of direct legal burdens on asexuality, which stands in stark contrast to homosexuality, as well as to race, sex, age, and disability. By contrast, some indirect legal burdens are documented in this Part, most notably, limited consummation requirements for marriage and domestic partnership regimes. (480) In sum, as popularly understood, asexuality meets two (or possibly three, including immutability) of the criteria.
d. The conditions for change
This application of the model to asexuality need not mean that asexuality will remain unprotected outside of New York state and a handful of other jurisdictions. The model sets into relief what would need to occur for asexuality to garner widespread antidiscrimination protection across jurisdictions. Few of the criteria are fixed in time. Most obviously, the political and relational landscape could change: asexuality could gradually or suddenly gain prominence as a salient group identity and a high-profile social movement, and broader public recognition could spur the creation and spread of limiting stereotypes. (481) Moreover, the normative form of immutability responds to changing attitudes. If the public begins to see asexuality as a fundamental part of a person's being, then asexuality would meet the normative version of immutability. If all these changes occurred, then the identity would move from two or three criteria up to six criteria and, on this analysis, would be far more likely to achieve protection.
Antidiscrimination protection for asexuals might come, in theory, through expansive judicial interpretation of existing sexual orientation protections, but this is unlikely given the definitional specifity of most of these laws. (482) More likely is the inclusion of asexuality within antidiscrimination laws that have not yet been enacted. Incorporating asexuality into ENDA would have the most significant impact, but short of that, the many remaining states and localities without sexual orientation antidiscrimination protection cover substantial territory. (483) In this vein, two municipalities passed ordinances in 2013 protecting asexuality as part of new laws covering "sexual orientation" more generally. (484)
One might question whether asexuality appropriately fits under the legal rubric of "sexual orientation" at all. Of course, under one model, graphically depicted by Storms in Figure 1, asexuality is a fourth sexual orientation, a sibling to homosexuality, bisexuality, and heterosexuality. (485) But even on the umbrella model of asexuality--in which asexuality stands as a kind of parallel regime, even a challenge, to the whole idea of sexuality (486)--asexuality can be readily understood to fit under the rubric of legal antidiscrimination protection for sexual orientation. Here, asexuality may be analogized to atheism, which garners statutory protection from "religious" discrimination even as it stands in opposition to religious belief. (487)
Will asexuality be incorporated into antidiscrimination law in this country? There are some who see this watershed moment on the horizon, as the asexuality movement grows in size, reputation, and age. (488) As a normative matter, the Article has set out a plausible argument for this legal development, subject to further substantiation of the research in this area. As a predictive matter, the future is far from clear. (489) What is clear, however, is that asexuality has much to teach a sexual society about the assumptions and oversights embedded in both its culture and its laws.
Is it not, indeed revealing, what the child's boredom evokes in the adults? Heard as a demand, sometimes as an accusation of failure or disappointment, it is rarely agreed to, simply acknowledged. How often, in fact, the child's boredom is met by that most perplexing form of disapproval, the adult's wish to distract him--as though the adults have decided that the child's life must be, or be seen to be, endlessly interesting. --Adam Phillips, On Being Bored (490)
This Article has offered the first study in the legal literature of the emerging phenomenon of asexuality, tracing the contours of this identity group and its intersections with more familiar categories of identity and with a sexual society. This Article has proposed new models for thinking about both sexuality and asexuality, and used the perspective of asexuality to set into relief the sexual assumptions of our legal system. After telling the story of how New York became the first U.S. state to protect asexuality from discrimination, this Article offered a plausible case for why more jurisdictions should follow New York's lead. Finally, this Article used the intuition that asexuality is currently a poor fit with our antidiscrimination law to develop a framework for better understanding what categories are and are not protected, and offered suggestions for what would need to happen for asexuality to gain protection.
In the incisive short essay quoted in the epigraph above, the British psychoanalyst Adam Phillips considers the subject of boredom in language that bears on our study of asexuality. In these lines, Phillips identifies a general reluctance by parents to accept that their child is, at any given moment, bored. Parents are more inclined to try to distract the child, to experience the child's boredom as a demand or a personal failure.
Phillips urges us to consider what might be discovered, or uncovered, if boredom were seen not as a threat but as an opening. He writes: "While the child's boredom is often recognized as an incapacity, it is usually denied as an opportunity." (491) What new possibilities might boredom bring to the bored child, Phillips asks, if parents were to make room for his uninterest? Moreover, one might ask, what could the parents gain from opening their eyes to the child's lack of desire?
The subject of this Article is of course adults, not children, and it is the absence of sexual attraction, rather than boredom. But it asks a parallel question to the one invited by Phillips on boredom: what might outsiders to asexuality stand to gain from becoming interested in the experience and perspective of those who say they are not interested in sex? Like Phillips, I suspect that something interesting lies in the seed of uninterest, in the position of those who do not share the assumptions of this sexual world. Examining our lives and laws through the lens of asexuality may lead all of us, sexual and asexual alike, somewhere we have not been before.
(1.) Blueskies, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 15, 2008, 4:49 AM), http://www.asexuality.org/en/topic/32908-some-blunt-questions (ellipses in original). One forum participant wrote: "That food analogy is perfect." Ankh Ascendant, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 21, 2008, 9:46 PM), http://www.asexuality.org/ en/topic/32908-some-blunt-questions/page-2. Another participant did not view the analogy as favorably, writing, "Well, gosh, if you stop eating you rather die, don't you? But yeah, I suppose I see what you're saying...." Forensic, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 15, 2008, 5:38 AM), http://www.asexuality.org/en/topic/32908-some-blunt-questions (ellipsis in original) (emoji omitted).
(2.) ASEXUAL VISIBILITY & EDUC. NETWORK, http://www.asexuality.org/home (last visited Jan. 29, 2014); see also, e.g., ANTHONY F. BOGAERT, UNDERSTANDING ASEXUALITY 16 (2012).
(3.) See, e.g., Lori A. Brotto et al., Asexuality: A Mixed-Methods Approach, 39 ARCHIWS SEXUAL BEHAV. 599, 599 (2010) ("There have been at least seven primetime television features on asexuality in the past year....").
(4.) (A)SEXUAL (Arts Engine 2011).
(5.) See infra Part III.E. 1.
(6.) The U.S. legal system is better described as "sexual law" than as a regime of "compulsory sexuality," as Part III reveals. The title of this Article, Compulsory Sexuality, refers to the pervasive cultural assumption--set into relief by the emergence of asexuality and popular responses to it--that everyone is defined by some kind of sexual attraction. See, e.g., infra Part II.A.3. The Article's title draws inspiration from Adrienne Rich's classic essay: Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, 5 SIGNS 631 (1980).
(7.) See N.Y. EXEC. LAW [section] 292(27) (McKinney 2013) ("The term 'sexual orientation' means heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived."). For the story of New York's incorporation of "asexuality," as well as a list of the other U.S. localities that cover asexuality and information on a recent development in U.K. law, see Part III.E. 1 below.
(8.) See infra Part III.E.2.a (discussing these results).
(9.) See infra text accompanying notes 250-68.
(10.) See infra Part III.E.3.
(11.) General FAQ, ASEXUAL VISIBILITY 84 EDUC. NETWORK, http://www.asexuality.org/ home/general.html#ex1 (last visited Jan. 29, 2014).
(12.) Michael D. Storms, Theories of Sexual Orientation, 38 J. PERSONALITY & SOC. PSYCHOL. 783, 784-85 (1980).
(13.) See ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR 1N THE HUMAN MALE 639-41 (1948). On Kinsey's designation of "X" for those who did not make the scale, see id. at 658 fig. 170.
(14.) Storms, supra note 12, at 785.
(15.) Id. at 784 fig.1.
(16.) Id. at 790 (discussing WILLIAM H. MASTERS & VIRGINIA E. JOHNSON, HOMOSEXUALITY IN PERSPECTIVE (1979), and noting that when Masters and Johnson conducted their 1979 study of the sexual responses of homosexuals, heterosexuals, and ambisexuals (who had no preference about the gender of their sexual partners), their definition of the latter group included both bisexuals and asexuals).
(17.) See, e.g., BOGAERT, supra note 2, at 17, 45 ("In the male sample, 1.5 percent were Xs. In his female sample, ... 14-19 percent of unmarried women were Xs, whereas 1-3 percent of married women were Xs." (citations omitted)); ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN FEMALE 472 (1953); ALFRED C. KINSEY ET AL., supra note 13, at 658 fig.170 (1948). On gender differences and asexuality, see Part II.B.2.b below.
(18.) See, e.g., (A)SEXUAL, supra note 4 (including comments by Cynthia Graham of the Kinsey Institute).
(19.) Storms, supra note 12, at 790.
(21.) See id. at 788-89 (describing his empirical inquiry).
(22.) See infra notes 192-97 and accompanying text.
(23.) By calling Hypoactive Sexual Desire Disorder (HSDD) a "version of asexuality," I do not mean to suggest that the two have very much in common. On the contrary, they have important differences, most notably the "distress" criterion for HSDD. See infra note 32 and accompanying text.
(24.) AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS [section] 302.71, at 278-79 (3d ed. 1980) (defining it as "[p]ersistent and pervasive inhibition of sexual desire" and noting that "[i]n actual practice this diagnosis will rarely be made unless the lack of desire is a source of distress to either the individual or his or her partner").
(25.) AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS [section] 302.71, at 293 (3d ed., rev. 1987).
(26.) AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS [section] 302.71, at 539 (4th ed., text rev. 2000). The DSM-IV was published in 1994, and the DSM-IV-TR in 2000. For a discussion of the DSM-V, which was published in May 2013, see notes 35-39 below and accompanying text.
(27.) AM. PSYCHIATRIC ASS'N, supra note 26, [section] 302.71, at 539.
(28.) Anita H. Clayton, The Pathophysiology of Hypoactive Sexual Desire Disorder in Women, 110 INT'L J. GYNECOLOGY & OBSTETRICS 7, 7 (2010) (endnotes omitted).
(29.) Thea Cacchioni, Heterosexuality and 'the Labour of Love': A Contribution to Recent Debates on Female Sexual Dysfunction, 10 SEXUALITIES 299, 306 (2007) ("The term 'healthicization' refers to the role of health promotion, as opposed to medical intervention, in regulating constructions of health and illness, and is particularly relevant in western, predominantly middle-class locales, where sex is increasingly 'talked of in the idiom of health promotion and lifestyle choices.'" (citation omitted)); see also ORGASM INC. (First Run Features 2009) (asserting, for example, that two sexologists, the Berman sisters, were paid up to $75,000 per day by pharmaceutical companies to promote diagnoses of sexual disorders on news programs around the country).
(30.) Lillian Faderman, Nineteenth-Century Boston Marriage as a Possible Lesson for Today, in BOSTON MARRIAGES: ROMANTIC BUT ASEXUAL RELATIONSHIPS AMONG CONTEMPORARY LESBIANS 29, 36-37 (Esther D. Rothblum & Kathleen A. Brehony eds., 1993).
(31.) Annemarie Jutel, Framing Disease: The Example of Female Hypoactive Sexual Desire Disorder, 70 Soc. SCL & MED. 1084, 1089 (2010).
(32.) See Brotto et al., supra note 3, at 599 (finding that sexual response was "not experienced as distressing" for self-identified asexuals); Loft A. Brotto & Morag A. Yule, Physiological and Subjective Sexual Arousal in Self-Identified Asexual Women, 40 ARCHIVES SEXUAL BEHAV. 699, 710 (2011) ("Although the significantly lower levels of partner-related sexual desire may suggest that asexuals fit the criteria for HSDD, the fact that they do not experience distress ... means that they do not meet diagnostic criteria.").
(33.) AM. PSYCHIATRIC ASS'N, supra note 26, [section] 302.71, at 539 (emphasis added).
(34.) One researcher indicates without citation that "a sexual dysfunction is only diagnosed in modern medicine and psychology (e.g., in the DSM) if it has an effect on interpersonal relations beyond the specific sexual domain that is of issue." BOGAERT, supra note 2, at 110-11. I have been unable to substantiate this claim, and other sources are to the contrary. See, e.g., HANDBOOK OF CLINICAL SEXUALITY FOR MENTAL HEALTH PROFESSIONALS 100-05 (Stephen B. Levine et al. eds., 2003) (discussing "interpersonal difficulty" in a way that assumes it covers a partner's distress).
(35.) AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013).
(36.) Interestingly, the male version of low-desire disorder tracks the current HSDD diagnosis almost exactly while the DSM-V added a newly minted diagnosis for women called "Female Sexual Interest/Arousal Disorder." Compare id. [section] 302.71, at 440 (defining "Male Hypoactive Sexual Desire Disorder"), with id [section] 302.72, at 433 (defining "Female Sexual Interest/Arousal Disorder"). Also notable is the removal of "sexual aversion disorder" from the proposed DSM-V "due to rare use and lack of supporting research." AM. PSYCHIATRIC ASS'N, HIGHLIGHTS OF CHANGES FROM DSM-IV-TR TO DSM-5, at 14 (2013), available at http://www.dsm5.org/Documents/changes%20from%20dsm-iv-tr%20to%20dsm-5.pdf.
(37.) See AM. PSYCHIATRIC ASS'N, supra note 35, [section] 302.72, at 433, [section] 302.71, at 440.
(38.) See E-mail from David Jay, Founder, The Asexual Visibility & Educ. Network, to author (Sept. 3, 2013) (on file with author) (confirming that he and others lobbied for this change); see also Shawn Landis, Proposed Definition for HSDD in Males for the DSM-V Released, EXAMINER.COM (June 21, 2010), http://www.examiner.com/article/proposed-definition-for-hsdd-males-for-the-dsm-v-released (describing, inter alia, a seventy-five-page report submitted to the American Psychiatric Association by an Asexual Visibility and Education Network task force).
(39.) The statements to this effect are similar, but not identical, in the female and male versions of low-desire disorder; surprisingly, though, whereas in the female diagnosis this sentence appears in the "[d]iagnostic [f]eatures" section, in the male diagnosis the sentence appears under "[o]ther sexual dysfunctions." See AM. PSYCHIATRIC ASS'N, supra note 35, [section] 302.72, at 433-34 ("If a lifelong lack of sexual desire is better explained by one's self-identification as 'asexual,' then a diagnosis of female sexual interest/arousal disorder would not be made."); id. [section] 302.71, at 443 ("If the man's low desire is explained by self-identification as an asexual, then a diagnosis of male hypoactive sexual desire disorder is not made.").
(40.) Anthony F. Bogaert, Asexuality: Prevalence and Associated Factors in a National Probability Sample, 41 J. SEX RES. 279, 281-82 (2004).
(41.) Id. at 282.
(42.) See BOGAERT, supra note 2, at 44-49 (reviewing and critiquing the studies, including his own ten-year follow-up study, and concluding that "the original estimate of 1 percent may not be a bad one, all things considered, and it is possible that it may underestimate the true number of asexual people" (citation omitted)); see also Anthony F. Bogaert, The Demography of Asexuality, in INTERNATIONAL HANDBOOK ON THE DEMOGRAPHY OF SEXUALITY 275, 280-82 (Amanda K. Baumle ed., 2013) (reporting on his follow-up study, with different parameters such as a younger population, in which the rate of those reporting never having experienced sexual attraction was only 0.47%); Catherine R.H. Aicken et al., Who Reports Absence of Sexual Attraction in Britain? Evidence from National Probability Surveys, 4 PSYCHOL. & SEXUALITY 121, 124-25 (2013) (finding prevalence rates of 0.4% and 0.9% reporting never having experienced sexual attraction with British samples from 1990-1991 and 2000-2001, respectively); Dudley L. Poston, Jr. & Amanda K. Baumle, Patterns of Asexuality in the United States, 23 DEMOGRAPHIC RES. 509, 519 (2010) (reporting, on three oblique measures of "asexual" identity, attraction, and behavior, respectively, that 3.8% of female subjects and 3.9% of male subjects in their 2002 U.S. sample responded "not sure" to a question about sexual orientation; 0.8% of females and 0.7% of males responded "not sure" to a question about sexual attraction; and nearly 5% of females and 6% of males reported "that they have never had sex in their lifetimes"). But see Aicken et al., supra, at 122-23 (critiquing Poston & Baumle, supra).
(43.) Bogaert, supra note 40, at 282.
(44.) Id. The study collected no data on arousal or masturbation.
(45.) Id. Menarche is the start of menstruation--the "first period."
(46.) Id. at 283.
(47.) Id. at 282-83.
(48.) Nicole Prause & Cynthia A. Graham, Asexuality: Classification and Characterization, 36 ARCHIVES SEXUAL BEHAV. 341, 352-53 (2007). The authors unfortunately did not report any findings on race.
(49.) Id. at 352.
(50.) The authors specifically emphasize the relative youth of the non-asexual subjects, observing that the study's "[n]on-asexuals were younger and perhaps less likely to be partnered as a result of insufficient time to locate a suitable partner rather than as a result of their non-asexual identity." Id. at 352-53. Overall, however, the subject pool was rather young--with a mean age of 21.5 for non-asexuals and 25.5 for asexuals--with a gap of four years between them. Id. at 348.
(51.) One recent poll of the self-identified asexual community found that 81% of respondents were age 25 or younger. TRISTAN "SIGGY" MILLER, ANALYSIS OF THE 2011 ASEXUAL AWARENESS WEEK COMMUNITY CENSUS (2011), available at http://www.asexualawarenessweek.com/census/SiggyAnalysis-AAWCensus.pdf.
(52.) Prause & Graham, supra note 48, at 352.
(53.) See infra Part II.B.2.b.
(54.) Prause & Graham, supra note 48, at 352.
(55.) See Brotto et al., supra note 3, at 613 (finding, "contrary to [their] predictions, a disproportionately high number of atheists in [their] sample"); see also id ("On the web site ... there was an informal poll and there seemed to be a quite a lot of atheist people."). This difference between Bogaert's and Brotto et al.'s findings on religiosity may reflect their different subject pools and ways of measuring asexuality, as Bogaert asked a national probability sample about their (lack of) attraction while Brotto et al. studied a sample of self-identified asexuals.
(56.) See, e.g., Kristin S. Scherrer, Coming to an Asexual Identity: Negotiating Identity, Negotiating Desire, 11 SEXUALITIES 621, 622 (2008) ("Asexuality, a relatively recent emergent sexual identity, has been developed with the aid of internet technologies which have allowed for the formation of community by otherwise geographically isolated individuals.").
(57.) Mark Carrigan, There's More to Life than Sex? Difference and Commonality Within the Asexual Community, 14 SEXUALITIES 462, 462, 466, 477 n.1 (2011) (listing websites); ASEXUAL VISIBILITY & EDUC. NETWORK, http://www.asexuality.org (last visited Jan. 29, 2014). In addition to AVEN, these sites include, for example, APOSITIVE.ORG, http://apositive.org (last visited Jan. 4, 2014); ASEXUALITY, http://asexuality.livejournal.com (last visited Jan. 29, 2014); ASEXUAL EXPLORATIONS, http://www.asexualexplorations.net (last visited Jan. 29, 2014); ASEXUAL SEXOLOGIST, http://asexualsexologist.wordpress.com (last visited Jan. 29, 2014); and AVENWIKI, http://www.asexuality.org/wiki/index.php? (last modified Jan. 29, 2014). See also Ty, Asexual Communities--A Pilot Study, http://edu.surveygizmo.com/s3/470476/cae8ae8af2a4 (last visited Jan. 29, 2014); KAGU143, A Survey for A-positive "s Members, Announcements, APOSITIVE.ORG (Mar. 30, 2011, 12:08 PM), http://apositive.org/viewtopic.php?f=-6&t=-505&start=0&hilit=-Ty+Hayes# p5022 (announcing Ty Hayes's study).
(58.) (A)SEXUAL, supra note 4.
(59.) See The Asexual Visibility & Educ. Network, Employment Discrimination Against the Asexual Community: A Growing Trend 2 (Jan. 26, 2013) (unpublished manuscript) (on file with author) [hereinafter AVEN Memo].
(60.) Carrigan, supra note 57, at 462; see Brotto et al., supra note 3, at 601; (A)SEXUAL, supra note 4 (documenting the AVEN-based asexuality community's first time participating in a pride march, in San Francisco in 2009, with a banner that read "AVEN asexuality.org").
(61.) See supra note 57 (listing examples).
(62.) AVEN reports that registration rates for its website average forty per day and that this burgeoning community is quite young, with 73% of respondents age 23 and younger. See AVEN Memo, supra note 59, at 2. For speculation as to why asexuality has emerged as a concept and an identity at this particular moment, see text accompanying notes 252-61 below.
(63.) Shawn Landis, Why Are Asexuals Aces?, ASEXUAL NEWS (Aug. 9, 2011, 1:14 PM), http://asexualnews.com/index.php/asexuality-101/410-asexualaces (observing that asexuals use "ace" because it is a convenient shorthand form of "asexual").
(64.) See, e.g., Brotto et al., supra note 3, at 610 ("Many [study participants] added that once they discovered AVEN and the large community of other asexuals, they felt that the asexual label explained them and their experiences completely.").
(65.) See, e.g., Jeffrey G. Sherman, Love Speech: The Social Utility of Pornography, 47 STAN. L. REV. 661, 681-82 (1995) ("Many gay men remember feeling as if they were 'the only one.'... For [this and other] reasons, a gay adolescent male's encounter with gay pornography is often a shattering discovery: 'shattering' in a positive sense.").
(66.) (A)SEXUAL, supra note 4 (interviewing Swankivy).
(67.) Rosie Swash, Among the Asexuals, OBSERVER (Feb. 25, 2012), http://www.theguardian.com/lifeandstyle/2012/feb/26/among-the-asexuals/print ("Appearing on The View, ... [David] Jay attempted to explain to mainstream America what asexuality was. 'What's the problem? Why do you need to organise?' barked Joy Behar, an actress and comedian who looks like Bette Midler and makes Joan Rivers seem demure. 'If you're not having sex, what's there to talk about?' said her co-panellist Star Jones, in an 'Am I right, ladies?' tone of voice.").
(68.) See infra Part III.E.
(69.) General FAQ, supra note 11; see Carrigan, supra note 57, at 467; infra Part II.A.4.
(70.) General FAQ, supra note 11.
(71.) Brotto et al., supra note 3, at 609. For a discussion of the distinctions between attraction, arousal, and desire, inter alia, see BOGAERT, supra note 2, at 11-26.
(72.) General FAQ, supra note 11.
(74.) Cf. RANDALL KENNEDY, SELLOUT: THE POLITICS OF RACIAL BETRAYAL 3 (2008) ("The specter of the 'sellout' haunts the African-American imagination."); J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2327 (1997) (discussing "status anxiety").
(75.) Thylacine, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 16, 2008, 11:57 PM), http://www.asexuality.org/en/index.php? /topic/32908-some-blunt-questions.
(76.) For another example of the compromise position, see AVENCakes, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 15, 2008, 9:22 AM), http://www.asexuality.org/en/topic/32908-some-blunt-questions ("I wouldn't say most. Not all are repulsed by sex, so if they're willing to compromise with/enjoy pleasing their partner it's likely they wouldn't totally be virgins. Not that that's the only one."). On some asexuals' rejection of the term "compromise" to describe situations where asexuals agree to sexual activity, see Ace, There Is No Such Thing as Sexual "Compromise" in Mixed Romantic Relationships, THINKING ASEXUAL (Feb. 26, 2012, 8:24 AM), http://thethinkingasexual.wordpress.com/2012/02/26/ there-is-no-such-thing-as-sexual-compromise-in-mixed-romantic-relationships ("The appropriate words to use when describing sex or lack thereof in mixed romantic relationships are: accommodate, concede, sacrifice, and agree.").
(77.) See, e.g., Dominique Mosbergen, Asexual Disorder? The Search for Asexual Identity Is Part Recognition, Part Redefinition, HUFFINGTON POST (June 18, 2013, 9:31 AM EDT), http://www.huffingtonpost.com/2013/06/18/asexual-disorder_n_33614 72.html?1371562287 ("Why am I asexual? I was born this way.").
(78.) ASEXUAL VISIBILITY & EDUC. NETWORK, ASEXUALITY: NOT EVERYONE IS INTERESTED IN SEX 2, available at http://www.asexuality.org/docs/AVEN%20300dpi% 20pamphlets.pdf.
(79.) See, e.g., id.; (A)SEXUAL, supra note 4; Natalie Cassidy's Real Britain: Asexuality (BBC Three television broadcast Mar. 5, 2009).
(80.) Scherrer, supra note 56, at 631 (internal quotation marks omitted) (quoting a study participant).
(81.) See infra notes 213-15; see also Robin West, Sex, Law, and Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE 221, 238 (Franklin G. Miller & Alan Wertheimer eds., 2010) ("Women and men both might consent to undesired sex on occasion--even on many occasions--for benign or harmless reasons. A woman might, on occasion, rather watch television, read, or sleep but agree to sex she doesn't particularly desire, because she loves her partner, because she's accustomed to trade-offs of this sort that benefit both, because she doesn't feel it as a burden, because she knows that her lack of desire may give way to desire, and so on. But that some undesired sex is harmless hardly means that it all is.").
(82.) I thank Susan Appleton for this way of formulating the distinction.
(83.) On the "not a choice" versus "born that way" arguments, see Edward Stein, Born That Way? Not a Choice?: Problems with Biological and Psychological Arguments for Gay Rights 4 (Benjamin N. Cardozo Sch. of Law, Jacob Bums Inst. for Advanced Legal Studies, Working Paper No. 223, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1104538.
(84.) I use "gays" here as shorthand for gay men and lesbians. This analysis applies to some bisexuals as well.
(85.) An AVEN "Q&A" thread included the question, "Do many asexuals agree with religious groups who advocate no sex before marriage?," to which nearly all respondents said they did not agree with that view. Blueskies, supra note 1 (posting the initial question); Ankh Ascendant, supra note 1 (replying negatively); Forensic, supra note 1 (replying negatively); see also infra Part II.B.1.c (discussing linkages with polyamory).
(86.) See, e.g., Scherrer, supra note 56, at 628.
(87.) Brotto et al., supra note 3, at 607 (finding that 80% of asexual men and 70% of asexual women reported that they had masturbated, and observing that these "masturbation frequencies were comparable to those reported in a recent British national probability study of sexual individuals"); see also BOGAERT, supra note 2, at 58 (observing that the percentages obtained by Brotto et al. were "only somewhat lower than the percentage of people who reported masturbating in a national sample of the United States population"). The data on this point are hard to interpret across the studies, however.
(88.) See, e.g., BOGAERT, supra note 2, at 58-59 (discussing his own finding that "42 percent of asexual people had masturbated in the last month" and explaining why even this figure might be artificially high).
(89.) It was not always obvious that contemporary asexual identity would evolve in the direction of including those who masturbate. AVEN's capacious understanding of asexuality rose in popularity amidst critiques of an alternative group--the "Official Asexuality Society," later renamed the "Official Nonlibidoism Society"--formed on the premise that "only people who did not masturbate could be asexual." Andrew Hinderliter, How Is Asexuality Different from Hypoaetive Sexual Desire Disorder?, 4 PSYCHOL. & SEXUALITY 167, 171-72 (2013). According to Hinderliter, this group "became defunct in late 2006." Id. at 172.
(90.) See, e.g., BOGAERT, supra note 2, at 59.
(91.) BOGAERT, supra note 2, at 59 (citing Brotto et al., supra note 3, at 611) (internal quotation marks omitted). In addition, some asexuals report that "they think of nothing when they masturbate" or they think of "non-human images," and, by one account, "a handful indicated that certain fetishes, like BDSM, come to mind." Dominique Mosbergen, Asexual Relationships, Masturbation and Romance in the Ace Community, HUFFINGTON POST (Aug. 21, 2013, 10:50 AM EDT), http://www.huffingtonpost.com/2013/06/19/asexual-relationsh ips_n_3362206.html.
(92.) Blueskies, supra note 1 (posting the initial question); Forensic, supra note 1 (replying).
(93.) Thylacine, supra note 75.
(94.) One might think here of popular representations of people masturbating for instrumental reasons, such as to fall asleep. See, e.g., Seinfeld: The Contest (NBC television broadcast Nov. 18, 1992); see also BOGAERT, supra note 2, at 60 ("[A]s mentioned, some sexual people may masturbate, at times, for this reason: merely to release tension and pelvic congestion, and less for the intense sexual pleasure of it.").
(95.) Kt8, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 24, 2008, 7:15 AM), http://www.asexuality.org/en/topic/32908-some-blunt-questions/page-2 (ellipses in original).
(96.) See, e.g., BOGAERT, supra note 40, at 282; CJ DeLuzio Chasin, Theoretical Issues in the Study of Asexuality, 40 ARCHIVES SEXUAL BEHAV. 713, 716 (2011); Scherrer, supra note 56, at 633-34; General FAQ, supra note 11.
(97.) See, e.g., Dame du Lac, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 15, 2008, 11:36 PM), http://www.asexuality.org/en/index.php?/topic/32908-some-blunt-questions ("Some asexuals class themselves as 'aromantic,' meaning they don't seek romantic relationships. Some aromantics do end up in relationships, but their experience of romance seems to be different to that of other peoples.").
(98.) See supra text accompanying notes 75-76, 81-82.
(99.) See, e.g., Mosbergen, supra note 91. "Pansexual" refers to attraction to others regardless of gender. See, e.g., Pansexuality, AVENWIKI, http://www.asexuality.org/wiki/ index.php?title=Pansexuality (last modified Nov. 10, 2010).
(100.) See Scherrer, supra note 56, at 629.
(101.) See supra Part II.A.2.a.
(102.) Cacchioni, supra note 29, at 304. Within mainstream culture, think of the uses of the terms "lost their virginity" or "had sex."
(103.) See, e.g., P.V.P., Comment to Define Sex Please?, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (Mar. 13, 2007, 3:36 AM), http://www.asexuality.org/en/ index.php?/topic/22445-define-sex-please.
(104.) Asexuality 101, CFGREYACE.WORDPRESS.COM, http://cfgreyace.wordpress.com/ ace101 (last visited Sept. 15, 2013) (on file with author).
(106.) See David Jay, Touch, LOVE FROM ASEXUAL UNDERGROUND (Nov. 16, 2011, 9:13 AM), http://asexualunderground.blogspot.com/2011/11/touch.html.
(107.) Repulsed, AVENWIKI, http://www.asexuality.org/wiki/index.php?title=Repulsed (last modified June 6, 2013).
(109.) Shadiya, Comment to When It Comes to Sex--Are You Repulsed or Indifferent??, For Sexual Partners, Friends and Allies, ASEXUAL VISIBILITY & EDUC. NETWORK (Feb. 25, 2008, 4:08 AM), http://www.asexuality.org/en/topic/29262-when-it-comes-to-sex-are-you-repulsed-or-indifferent/page-2. For an example of the former type of sex aversion, see note 235 below.
(110.) Compare, e.g., Dennis Milam Bensie, A Gay Man's Sex with Women, GOOD MEN PROJECT (June 24, 2013), http://goodmenproject.com/marriage-2/a-gay-mans-sex-with-women ("Jessica often asked me to go down on her. I just ignored her request: I'm sure the look on my face gave her my answer. She offered to shower right before we had sex to make sure it was clean. No deal. I couldn't even look at her vagina, let alone stick my whole face down there."), with, e.g., Flymetothemoon, Comment to Lesbians--Sex with Men?, Coming Out Advice, EMPTY CLOSETS (Feb. 19, 2013, 11:12 PM), http://emptyclosets.com/ forum/coming-out-advice/58013-1esbians-sex-men.html ("I consider myself a lesbian, but I have had sex with men before. I never really enjoyed sex as much with a man as I have with a woman, though, and I think for me that's the difference.").
(111.) Apollonian, Comment to When It Comes to Sex--Are You Repulsed or Indifferent??, For Sexual Partners, Friends and Allies, ASEXUAL VISIBILITY & EDUC. NETWORK (Feb. 2, 2008, 6:35 AM), http://www.asexuality.org/en/topic/29262-when-it-comes-to-sex-are-you-repulsed-or-indifferent.
(112.) Atalante, Comment to When It Comes to Sex--Are You Repulsed or Indifferent??, For Sexual Partners, Friends and Allies, ASEXUAL VISIBILITY & EDUC. NETWORK (Feb. 2, 2008, 11:05 AM), http://www.asexuality.org/en/topic/29262-when-it-comes-to-sex-are-you-repulsed-or-indifferent (ellipses in original).
(113.) Indifferent, AVENWIKI, http://www.asexuality.org/wiki/index.php?title= Indifferent (last modified Oct. 28, 2010).
(114.) See, e.g., Shockwave, Comment to When It Comes to Sex--Are You Repulsed or Indifferent??, For Sexual Partners, Friends and Allies, ASEXUAL VISIBILITY & EDUC. NETWORK (Mar. 4, 2008, 1:40 AM), http://www.asexuality.org/en/topic/29262-when-it-comes-to-sex-are-you-repulsed-or- indifferent/page-2 ("Why is it that every time someone starts a new thread on this topic they only include those two options? Life is not binary, people!").
(115.) Carrigan, supra note 57, at 469-70. Carrigan also acknowledges a range or spectrum within the categories. Id.
(116.) An online survey conducted on AVEN found 142 participants identifying as "indifferent" and 87 as "repulsed." Frustr8ed, When It Comes to Sex--Are You Repulsed or Indifferent??, For Sexual Partners, Friends and Allies, ASEXUAL VISIBILITY & EDUC. NETWORK, http://www.asexuality.org/en/topic/29262-when-it-comes-to-sex-are-you-repulsed-or-indifferent (last updated Nov. 11, 2011).
(117.) RIKI ANNE WILCH1NS, What Does It Cost to Tell the Truth?, in READ MY LIPS: SEXUAL SUBVERSION AND THE END OF GENDER 33, 33-35 (1997) (describing, inter alia, social interactions around her process of transitioning from male to female).
(118.) Mary Duenwald, For Them, Just Saying No Is Easy, N.Y. TIMES (June 9, 2005), http://www.nytimes.com/2005/06/09/fashion/thursdaystyles/09asexual.html?adxnn=1&adxn nlx=1324063380-V7silNHnlJ/2hpYclnVtEw (internal quotation marks omitted).
(119.) See supra Part I.B.
(120.) See, e.g., PrairieGhost, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 16, 2008, 8:03 PM), http://www.asexuality.org/en/index.php?/topic/32908-some-blunt-questions.
(121.) Swankivy, Asexuality Top Ten, SWANKIVY.COM, http://swankivy.com/writing/essays/philosophy/asexual.html (last visited Jan. 29, 2014) [hereinafter Swankivy, Asexuality Top Ten]; see also Swankivy, Asexuality: An Introduction, YOUTUBE (June 2, 2008), http://www.youtube.com/watch?v=RBzGJIjAy4Y [hereinafter Swankivy, Asexuality: An Introduction] ("In my next videos, I'm going to itemize a top-ten list that I came up with a long time ago of things people suggest are really the reason for my lack of interest in sex besides asexuality.").
(122.) A parallel game of "asexuality bingo" was made by a male asexual who goes by jmerry. Jmerry, ASEXUALITY BINGO (last visited Jan. 29, 2014), http://swankivy.com/LJ/bingo.jpg.
(123.) Swankivy, Asexuality Top Ten, supra note 121 (capitalization altered); cf. supra Part I.C (noting the conflicting data on whether asexuals are more or less likely to be religious).
(124.) Swankivy, Asexuality Top Ten, supra note 121.
(125.) See, e.g., Olly Bootle, No Sex Please. An Asexual Life, INDEPENDENT (Mar. 17, 2009), http://www.independent.co.uk/life-style/health-and-families/features/no-sex-please-an-asexual-life-1646347.html ("I get told I'm repressed, that I'm psychologically damaged, that it's something to do with my history, that I've been abused. I've had people make out there's something wrong with me, as if it's a physical or psychological ailment." (internal quotation mark omitted)).
(126.) (A)SEXUAL, supra note 4.
(128.) For the full quotation, see text accompanying note 250 below.
(129.) (A)SEXUAL, supra note 4.
(130.) See, e.g., BOGAERT, supra note 2, at 41 ("In short, some people's reaction [to my research findings] has been one of disbelief, questioning that as many as 1 percent or more of human beings could be asexual. Frankly, I think that some people would question that anyone could be truly asexual, even if I had reported the rate at .00001 percent." (citation omitted)).
(131.) I thank Justine di Giovanni for this distinction.
(132.) See BOGAERT, supra note 2, at 64 (observing that "asexuality is a diverse phenomenon"); see also supra note 69 (citing sources on the diversity within asexuality).
(133.) The search for empirical evidence of a biological basis for asexuality is underway. Building on Bogaert's 2004 finding that a lack of sexual attraction had biological correlates such as shorter stature and later menarche, Yule, Brotto, and Gorzalka conducted an online study of self-identified asexuals and non-asexuals and found that the asexuals were significantly more likely to be non-right-handed and evinced different patterns and numbers of older siblings. See Morag A. Yule et al., Biological Markers of Asexuality: Handedness, Birth Order, and Finger Length Ratios in Self-Identified Asexual Men and Women, 43 ARCHIVES SEXUAL BEHAV. 299, 306-07 (2014).
(134.) The research on the link between child sexual abuse and diminished desire (which is not the same thing as asexuality but has some overlap) is not conclusive, see, e.g., Tamra Burns Loeb et al., Child Sexual Abuse: Associations with the Sexual Functioning of Adolescents & Adults, 13 ANN. REV. SEX RES. 307, 316 (2002) ("Researchers examining the association of [child sexual abuse] with women's sexual functioning describe conflicting findings."), but some work finds a significant relationship, see, e.g., David B. Sarwer & Joseph A. Durlak, Childhood Sexual Abuse as a Predictor of Adult Female Sexual Dysfunction: A Study of Couples Seeking Sex Therapy, 20 CHILD ABUSE & NEGLECT 963, 969 (1996). For a discussion relatively sympathetic to the search for causes of asexuality, see BOGAERT, supra note 2, 147-160.
(135.) Bootie, supra note 125 (internal quotation marks omitted).
(136.) See infra Part III.E.3 (discussing implications of this).
(137.) See General FAQ, supra note 11.
(139.) See supra note 1 and accompanying text. As one comment to the passage quoted in the epigraph observed, you literally need food to live, but you don't need sex to live. Forensic, supra note 1.
(140.) Roger Mellie, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 21, 2008, 8:58 PM), http://www.asexuality.org/ en/index.php?/topic/32908-some-blunt-questions/page-2. Curiously, golf seems to come up more often than other activities, which may say more about the reputation of golf than about asexuals. See BOGAERT, supra note 2, at 49; Bootie, supra note 125; Q & Ace: An Introduction to Asexuality, ASEXUALITY ARCHIVE (Jan. 23, 2012), http://www.asexuality archive.com/q-ace-an-introduction-to-asexuality ("That's a bit like claiming that I'm not interested in golf because I'm no good at it. No, I'm not interested in golf because it's golf and it's not interesting."); see also George Carlin, WIKIQUOTE, http://en.wikiquote.org/ wiki/George_Carlin (last modified Dec. 22, 2013) (calling golf "[a] boring game for boring people").
(141.) I thank Martie Kutscher for this angle on the hobbies point. One explanation offered for the skepticism about asexuality is the bias known in social psychology as the false consensus effect--that is, people's "tendency to believe that everyone must be just like [them]." See BOGAERT, supra note 2, at 51 (citing Lee Ross et al., The "False Consensus Effect": An Egocentric Bias in Social Perception and Attribution Processes, 13 J. EXPERIMENTAL SOC. PSYCHOL. 279 (1977)). But to the extent that asexuality inspires vocal disbelief, this point from social psychology only seems to sharpen the divide between asexuality and everything else: namely, how often do golfers actually believe that everyone else loves golf?. That said, there is one food analogy that holds some promise: chocolate. Cf., e.g., Madison Moore, Yes, There Are People Who Don't Like Chocolate, THOUGHT CATALOG (Aug. 19, 2013), http://thoughtcatalog.com/2013/yes-there-are-people-who_dont_like. chocolate.
(142.) See McBuh, Comment to Define Sex Please?, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (Mar. 14, 2007, 6:22 AM), http://www.asexuality.org/ en/index.php?/topic/22445-define-sex-please (responding to someone's definition of sex as the placement of any appendage into another's orifice with the line: "Make sure the nose you pick is your own!").
(143.) See, e.g., See Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 STAN. L. REV. 353, 358 n.9 (2000).
(144.) Of course, definitions of bisexuality vary, and by many accounts, monosexuals often have some amount of attraction to their nondominant sex. But a pure monosexual would not.
(145.) I thank Kimberly Walters for this way of formulating the point.
(146.) See Interview with David Jay, Founder, The Asexual Visibility & Educ. Network, in N.Y.C., N.Y. (June 12, 2012).
(147.) See infra Part II.B.l.a.
(148.) See supra notes 64-66 and accompanying text.
(149.) See, e.g., Brotto et al., supra note 3, at 616 (discussing V. Cass, Homosexual Identity Formation: A Theoretical Model, 4 J. HOMOSEXUALITY 219 (1979)).
(150.) See, e.g., General FAQ, supra note 11.
(151.) Swankivy, Asexuality Top Ten, supra note 121.
(152.) Bootle, supra note 125.
(153.) See, e.g., Naomi Mezey, Dismantling the Wall: Bisexuality and the Possibilities of Sexual Identity Classification Based on Acts, 10 BERKELEY WOMEN'S L.J. 98, 99 (1995) ("'[B]isexual practices' are absorbed into both heterosexual and homosexual identities, and ... those identities either hide or disfigure bisexuality as an alternative identity."); see also Ruth Colker, A Bisexual Jurisprudence, 3 LAW & SEXUALITY 127, 127 (1993) ("A bisexual jurisprudence? Until I decided to write this essay, there was no such thing as a bisexual jurisprudence."). This theme is most prominently emphasized by Yoshino, supra note 143. But see Elizabeth M. Glazer, Sexual Reorientation, 100 GEO. L.J. 997, 1000 (2012)(arguing that bisexuality is now "hypervisible" in both law and culture).
(154.) Yoshino, supra note 143, at 399, 410.
(155.) Id. at 364-88.
(156.) Note this informal comparison is only very roughly analogous to Yoshino's detailed and methodical analysis.
(157.) See Bogaert, supra note 40, at 281-82.
(158.) See also AVEN Memo, supra note 59, at 2 (citing the size of AVEN).
(159.) See Bogaert, supra note 40, at 284.
(160.) See, e.g., Scherrer, supra note 56, at 635.
(161.) See, e.g., Lexicon, AVENWIKI, http://www.asexuality.org/wiki/index.php? title=Lexicon (last modified Oct. 25, 2013). A related term is "demisexual," used for those who feel "sexual attraction only to people with whom they are in an [sic] close relationship, often a romantic one." Id.
(162.) Scherrer, supra note 56, at 635 (quoting Nora, a twenty-year-old white woman).
(163.) Id. (internal quotation mark omitted) (quoting Mona, a thirty-year-old white woman).
(164.) See Elizabeth F. Emens, Intimate Discrimination." The State's Role in the Accidents of Sex and Love, 122 HARV. L. REV. 1307, 1355 (2009) (discussing competing versions of bisexuality as either (1) indifferent to gender or (2) sensitive to gender, as in a person who desires both masculine men and feminine women or both feminine men and feminine women, for instance).
(165.) See, e.g., Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & Soc. CHANGE 277, 282-83 (2004).
(166.) Interview with David Jay, supra note 146. On the meaning of "sex positivity," see, for example, Margo Kaplan, Sex Positive Law, 89 N.Y.U.L. REV. (forthcoming 2014) (manuscript at 7) ("A sex-positive framework values sexual autonomy and all forms of consensual sexual activities as a source of pleasure and fulfillment."), available at http://papers.ssm.com/so13/papers.cfm?abstract_id=2308955.
(167.) See Emens, supra note 165, at 309.
(168.) See (A)SEXUAL, supra note 4; see also Karli June Cerankowski & Megan Milks, New Orientations: Asexuality and Its implications for Theory and Practice, 39 FEMINIST STUD. 650, 662 (2010). On sex-positive asexuals, as compared to neutral, indifferent, or repulsed asexuals, see text accompanying note 115 above.
(169.) See (A)SEXUAL, supra note 4.
(170.) Whether polyamory is a sexual orientation is a contested question. See, e.g., Emens, supra note 165, at 340-54 (contrasting universalizing and minoritizing accounts of polyamory); Ann E. Tweedy, Polyamory as a Sexual Orientation, 79 U. CIN. L. REV. 1461, 1462 (2011) (examining whether polyamory can properly be considered an "orientation").
(171.) (A)SEXUAL, supra note 4 ("We're almost like we don't have [a sexuality]. I always felt like I don't have a sexuality.").
(172.) See infra Part II.C.4.
(173.) See Brotto et al., supra note 3, at 601.
(174.) Id. at 615.
(175.) Chasin, supra note 96, at 716.
(176.) See, e.g., JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 8-9 (1999).
(177.) Chasin, supra note 96, at 716.
(178.) On intersex, see What Is Intersex?, INTERSEX SOC'Y N. AM., http://www.isna.org/ faq/what_is_intersex (last visited Jan. 29, 2014) ("'Intersex' is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn't seem to fit the typical definitions of female or male ... [and] is a socially constructed category that reflects real biological variation.").
(179.) I present these two possibilities as in tension, but the tension may be resolved if it turns out that a relatively large subset of asexuals do not embrace a binary gender identity, but that among those who do, women are in the majority.
(180.) See supra Part I.C.
(181.) See Prause & Graham, supra note 48, at 349.
(182.) Bogaert, supra note 40, at 282. Bogaert's follow-up study found a significant sex difference only in the weighted analyses but not in the original data. See Bogaert, supra note 42, at 280.
(183.) See Brotto et al., supra note 3, at 615; Scherrer, supra note 56, at 625.
(184.) Lunamoth, Biological Sex Poll (July 2007), Census Forum, ASEXUAL VISIBILITY & EDUC. NETWORK, http://www.asexuality.org/en/index.php?/topic/24599-biological-sex-poll-july-2007 (last updated Oct. 8, 2011) (reporting more specifically, in a study of 1370 members, that 1.24% chose "Intersexed," 0.80% chose "Transsexual (M to F)," and 2.19% chose "Transsexual (F to M)"). Surprisingly, Brotto et al. report slightly different numbers for this study, see Brotto et al., supra note 3, at 615, although the site says the topic is closed, see Lunamoth, supra. The upshot of the results is the same, in any ease.
(185.) Blueskies, supra note 1.
(186.) Throne Eins, Comment to Define Sex Please?, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 15, 2008, 9:44 PM), http://www.asexuality.org/en/ index.php?/topic/32908-some-blunt-questions ("I think women are reportedly higher in number, but men are expected by society to be sex fiends, so men may not feel comfortable admitting that they are asexual.").
(187.) See Brotto et al., supra note 3, at 615. But see Ela Przybylo, Producing Facts." Empirical Asexuality and the Scientific Study of Sex, 23 FEMINISM & PSYCHOL. 224, 236-39 (2013) (critiquing this hypothesis).
(188.) See, e.g., J. Gayle Beck, Hypoactive Sexual Desire Disorder: An Overview, 63 J. CONSULTING & CLINICAL PSYCHOL. 919, 920 (1995); Terri D. Fisher et al., Sex on the Brain?." An Examination of Frequency of Sexual Cognitions as a Function of Gender, Erotophilia, and Social Desirability, 49 J. SEX RES. 69, 69 (2012) ("According to stereotype and the popular media, men think about sex much more than do women."). But see Roy F. Baumeister et al., Is There a Gender Difference in Strength of Sex Drive? Theoretical Views, Conceptual Distinctions, and a Review of Relevant Evidence, 5 PERSONALITY & SOC. PSYCHOL. REV. 242, 243 (2001) (reviewing the literature and finding no consensus about whether men or women have the stronger sex drive).
(189.) ANNIE HALL (MGM 1977); Annie Hall (1977): Quotes, IMDB, http://www.imdb.com/title/tt0075686/quotes (last visited Jan. 29, 2013) (quoting the scene).
(190.) There is a lot at stake in the question of who derives greater pleasure from sex--which is not the same thing, of course, as who wants sex more or who wants more sex--and contestation over this point can be seen as far back as the Ovidean tale of Tiresias's blinding.
OVID, 1 METAMORPHOSES 147-49 (G.P. Goold ed., Frank Justus Miller trans., 3d rev. ed. 1984) (c. 8 C.E.).
(191.) See supra notes 35-37 and accompanying text.
(192.) This may help explain David Jay's relative fame and role in bringing asexuality into the limelight. See, e.g., Bootle, supra note 125 ("It's so unusual--especially for a man--to have a complete lack of interest in sex....").
(193.) See supra text accompanying note 22.
(194.) Myra T. Johnson, Asexual and Autoerotic Women: Two Invisible Groups, in THE SEXUALLY OPPRESSED 96, 104 (Harvey L. & Jean S. Grochos eds., 1977).
(195.) Id. at 104.
(196.) Id.; cf. Faderman, supra note 30.
(197.) Chasin, supra note 96, at 722-23.
(198.) See, e.g., TOM SHAKESPEARE, KATH GILLESPIE-SELLS & DOMINIC DAVIES, THE SEXUAL POLITICS OF DISABILITY: UNTOLD DESIRES 9-12 (1996); Michael L. Perlin, Hospitalized Patients and the Right to Sexual Interaction: Beyond the Last Frontier?, 20 N.Y.U. REV. L. & SOC. CHANGE 517, 537 (1993-1994); Tom Shakespeare, Disability, Identity and Difference, in EXPLORING THE DIVIDE: ILLNESS AND DISABILITY 94, 109 (Colin Barnes & Geof Mercer eds., 1996); see also Emens, supra note 164, at 1325.
(199.) See, e.g., Scherrer, supra note 56, at 623.
(200.) Eunjung Kim, Asexuality in Disability Narratives, 14 SEXUALITIES 479 (2011).
(201.) See, e.g., General FAQ, supra note 11 ("If you experience a sudden decline in sexual interest or attraction, it may be linked to side effects of certain medications or illness. It is advisable to discuss sudden changes with your doctor." (italics omitted)).
(202.) The extant research has focused largely on ASDs, finding higher levels of asexuality (and sometimes homosexuality or bisexuality) among people with ASDs. See, e.g., Laura Gilmour et al., Sexuality in a Community Based Sample of Adults with Autism Spectrum Disorder, 6 RES. AUTISM SPECTRUM DISORDERS 313, 317 (2011). Extensive conversations on AVEN and informal surveys suggest higher levels of Asperger's Syndrome among self-identified asexuals. See, e.g., Morpohovariant, Comment to Asexuality & Asperger's, Welcome Lounge, ASEXUAL VISIBILITY & EDUC. NETWORK (Feb. 2, 2012, 4:00 PM), http://www.asexuality.org/en/topic/70498-asexuality-and-aspergers. This is far from a definitive conclusion, however. As one comment put it:
While a noticeable number of AVEN members have Asperger's, this is not necessarily a link between the two. Firstly there would need to be research into the incidences of Asperger's in other sexualities to compare them to and secondly it has been said that people with Asperger's are more likely to realise they are asexual because of the logical thought and lack of social connections that are innate to the syndrome.
ASEXUALITY VISIBILITY & EDUC. NETWORK, ASEXUALITY: THE BUMPER BOOK OF FREQUENTLY ASKED QUESTIONS 5 (2013), available at http://asexualawarenessweek.com/ docs/PRIDE-bumper-faqs.pdf.
(203.) Aspies is a shorthand term embraced by some people with Asperger's Syndrome, which is the type of ASD most commonly associated with asexual identity. See supra note 202.
(204.) See supra Part I.B.
(205.) On "minoritizing" discourses, see EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 85 (1990) (defining a "minoritizing" view of homosexuality as the view that "there is a distinct population of persons who 'really are' gay").
(206.) See supra notes 12-16 and accompanying text.
(207.) See, e.g., Bootie, supra note 125 and accompanying text (quoting one asexual on being "wired" this way); see also supra note 133 and accompanying text (discussing research on biological bases and claims of hardwired asexuality). This is not to say that the "born that way" arguments are the same as the "not a choice" arguments, as Ed Stein demonstrates. See Stein, supra note 83, at 10-14.
(208.) On "nature talk" across categories, and the quest for the gay gene in particular, see generally Elizabeth F. Emens, Against Nature, in NOMOS LII: EVOLUTION AND MORALITY 293 (James E. Fleming & Stanford Levinson eds., 2012).
(209.) Cf. Emens, supra note 165, at 352-54 (discussing minoritizing in the context of polyamory).
(210.) See, e.g., Brotto et al., supra note 3, at 599.
(211.) Cf Glazer, supra note 153, at 1006 n.38 (invoking Tina Fey's 30 Rock character Liz Lemon on becoming "a thing").
(212.) Leo Bersani, Is the Rectum a Grave?, OCTOBER, Winter 1987, at 197, 197.
(213.) In the words of Eve Sedgwiek, who coined the term in writing about homosexuality, a "universalizing" view of homosexuality contrasts with a "minoritizing" view that some subset of people really are gay, and holds "that apparently heterosexual persons and object choices are strongly marked by same-sex influences and desires, and vice versa for apparently homosexual ones." SEDGWICK, supra note 205, at 85.
(214.) For example, some works suggest that sexual desire varies over the life cycle, for example, declining with age and with parenting, though the trajectories are not all linear and more research is needed. See, e.g., Vaughn Call et al., The Incidence and Frequency of Marital Sex in a National Sample, 57 J. MARRIAGE & FAM. 639, 646-47, 649-50 (1995); Osmo Kontula & Elina Haavio-Marmila, The Impact of Aging on Human Sexual Activity and Sexual Desire, 46 J. SEX RES. 46, 54 (2009); Abi Taylor & Margot A. Gosney, Sexuality in Older Age." Essential Considerations for Healthcare Professionals, 40 AGE & AGEING 538, 538-39 (2011); see also Suzanne A. Kim, The Neutered Parent, 24 YALE J.L. & FEMINISM 1, 49 (2012).
(215.) See Cacchioni, supra note 29, at 301-02.
(216.) Emens, supra note 165, at 349.
(217.) See (A)sEXUAL, supra note 4.
(218.) See supra Part II.B.l.b.
(219.) This might help explain why avowedly sex-positive people tend to be the strongest allies for asexuals; they may be the least likely to feel anxious about being mistaken for asexual. See supra notes 166-71 and accompanying text.
(220.) Cf Chasin, supra note 96, at 723 (suggesting that asexuality may spawn radical new ideas).
(221.) See supra notes 12-16 and accompanying text.
(222.) See, e.g., PurEvil, a/s/l, URBAN DICTIONARY (Apr. 24, 2006), http://www.urbandictionary.com/define.php?term=a%2Fs%2F1.
(223.) See, e.g., Does Menstruation Affect My Sex Drive?, COSMOPOLITAN, http://www.cosmopolitan.com/sex-love/advice/menstruation-affect-sex-drive (last visited Jan. 29, 2013).
(224.) See, e.g., Nympho, Horny, URBAN DICTIONARY (Aug. 25, 2003), http://www.urbandictionary.com/define.php?term=horny (defining "horny" as "[t]urned on immensely").
(225.) See, e.g., Zekimster, Horndog, URBAN DICTIONARY (Jan. 15, 2005), http://www.urbandictionary.com/define.php?term=horndog (defining "horndog" as "a REALLY, REALLY horny guy.., or girl" (ellipsis in original)).
(226.) See, e.g., Frances Cohen Praver, What Drives a Sex Addict?, PSYCHOL. TODAY (Oct. 7, 2009), http://www.psychologytoday.eom/blog/love-doc/200910/what-drives-sexaddict.
(227.) See, e.g., Anonymous, Frigid, URBAN DICTIONARY (Mar. 4, 2005), http://www.urbandictionary.com/defme.php?term=frigid.
(228.) See, e.g., David Chen, Cold Fish, URBAN DICTIONARY (Dec. 14, 2003), http://www.urbandictionary.com/define.php?term=cold+fish.
(229.) See supra Part II.B.2.b.
(230.) Eve Sedgwick foreshadowed this moment in 1990 when she puzzled over our preoccupation with the sex/gender of those we desire as the defining axis of sexual orientation, declaring instead, "[p]eople are different from each other." SEDGWICK, supra note 205, at 22 (italics omitted). She offered an illustrative list of possible alternative classifications of sexuality, including some that reflect a quantity perspective: "[s]ome people spend a lot of time thinking about sex, others little" and "[s]ome people like to have a lot of sex, others little or none." Id. at 25.
(231.) Chasin, supra note 96, at 718.
(232.) See supra note 87.
(233.) Eve Sedgwick anticipated a version of this: "Some people's sexual orientation is intensely marked by autoerotic pleasures and histories--sometimes more so than by any aspect of alloerotic object choice. For others the autoerotic possibility seems secondary or fragile, if it exists at all." SEDGWICK, supra note 205, at 25-26. A related clinical diagnosis is "automonosexualism," or a sexual attraction to oneself. See Przybylo, supra note 187, at 233. Had Sedgwick had asexuality identity in mind, she might have said that the autoerotic can mark a person's orientation "more so"---or to the exclusion of--"any aspect of alloerotic object choice." SEDGWICK, supra note 205, at 25-26.
(234.) See supra text accompanying notes 91-95 (discussing Brotto's account of asexuals' descriptions of masturbation in clinical or mechanical terms).
(235.) Carrigan, supra note 57, at 470. Carrigan quotes one avowedly sex-averse asexual who observed,
I believe I differ from many other repulsed (as opposed to indifferent) asexuals in that it is purely the idea of myself having sex that I find disgusting. The idea of others doing it does not bother me in the slightest, apart from finding depictions of female sexuality a little uncomfortable as it reminds me of myself.
Id. For more discussion of sex-aversion and sex-indifference--whether toward sex in general or just sex involving oneself--see Part II.A.2.c above.
(236.) See, e.g., 10vID, supranote 190, at 149-61.
(237.) Cf. BOGAERT, supra note 2, at 63 ("[W]hen [masturbation] fantasies do occur in asexual people in a consistent or systematic way, they are often, although not always, still of a 'disconnected' sort. That is, these people often view themselves as not being part of the sexual acts they are fantasizing about or viewing...."). Bogaert has characterized the "'disconnect' between an individual's sense of self and a sexual object/target"--which he describes as "consistent with a lack of subjective sexual attraction for others"--as a "paraphilia" that he names "autochorissexualism." Anthony F. Bogaert, Asexuality and Autochorissexualism (Identity-less Sexuality), 41 ARCHIVES SEXUAL BEHAV. 1513, 1513 (2012). In contrast to Bogaert's medicalizing of the position associated with asexuality, my suggestion here is that everyone with sexual fantasies or behavior would fall somewhere along the narcissism axis, with masturbating asexuals on the low end, and those who imagine themselves as a part of every sexual fantasy or activity on the high end.
(238.) See, e.g., Jacob Bernstein, An Indie Hit's Sex Message, DAILY BEAST (July 18, 2010, 6:38 PM EDT), http://www.thedailybeast.com/articles/2010/07/18/the-lesbians-wholove-male-gay-porn.html. But cf Kristina Gupta, Picturing Space for Lesbian Nonsexualities: Rethinking Sex-Normative Commitments Through The Kids Are All Right (2010), 17 J. LESBIAN STUD. 103, 107 (2013) (arguing that the film "creates a space for nonsexuality within the category lesbian").
(239.) See Lisa M. Diamond, What Does Sexual Orientation Orient? A Biobehavioral Model Distinguishing Romantic Love and Sexual Desire, 110 PSYCHOL. REV. 173 (2003).
(240.) Chasin, supra note 96, at 722.
(241.) This is of course speculation. One scholar rightly suggests that an interesting avenue for further research is "relational dynamics between asexual and non-asexual partners. For example, do 'sexually congruent' couples (i.e., both identify as asexual) experience greater levels of intimacy and relationship satisfaction than 'sexually incongruent' couples?" C.J. Bishop, A Mystery Wrapped in an Enigma--Asexuality: A Virtual Discussion, 4 PSYCHOL. & SEXUALITY 195,205 (2013) (italics omitted) (quoting Todd G. Morrison).
(242.) Yoshino's work on bisexual erasure points to some reasons why bisexuals might find less acceptance among monosexuals, however. See supra Part II.B. 1 .b.
(243.) Clare, GirlFags FAQ, GIRLFAGS, https://web.archive.org/web/20111126035847/ http://www.girlfags.com/faq.html (defining "girlfag" as "[a] woman who is very attracted to gay/bi men").
(244.) Id. (defining "guydyke" as "[a] man who is very attracted to lesbian/bi women").
(245.) This would make asexuality more like the absence of a sexual orientation, as noted earlier. See supra text accompanying notes 170-71.
(246.) Swankivy, for instance, has resisted the characterization of asexuality as a challenge to the idea of sexual orientation. See Swankivy, Asexuality and Pansexuality: Petition!, YouTUBE (July 11, 2009), http://www.youtube.com/watch?v=jRkaPYe9fLw ("I am an asexual .... Some people would say, 'Does that mean you have no sexual orientation?' It really means more the other way. It means you kind of have a sexual orientation of 'no.'"); Swankivy, Asexuality: An Introduction, supra note 121 ("I want to make information available about lack of sexual attraction being not a sickness or a psychosis in itself but rather a legitimate sexual orientation."); cf Storms, supra note 12, at 784 fig. 1.
(247.) See supra note 99 and accompanying text.
(248.) Chasin, supra note 96, at 721.
(249.) See, e.g., 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION 913 (Robert Hurley trans., Random House, Inc. 1978); see also MICHEL FOUCAULT, The End of the Monarchy of Sex, in FOUCAULT LIVE: COLLECTED INTERVIEWS, 1961-1984, at 214, 214 (Sylvere Lotringer ed., Lysa Hochroth & John Johnston trans., 1996) [hereinafter FOUCAULT, The End of the Monarchy of Sex] ("How is it that sexuality has been considered the privileged place where our deepest 'truth' is read and expressed?... [S]ince Christianity, Western civilization has not stopped saying, 'To know who you are, know what your sexuality is about.'"). Relatedly, Sedgwick wrote, "Sexuality makes up a large share of the self-perceived identity of some people, a small share of others'." SEDGWICK, supra note 205, at 25.
(250.) (A)SEXUAL, supra note 4.
(251.) Cf. Sex and the City: Pick-a-Little, Talk-a-Little (HBO television broadcast July 13, 2003) (coining the now-iconic phrase: "he's just not that into you"). On the demand for sexual confession, see 1 FOUCAULT, supra note 249, at 11-13; and SEDGWICK, supra note 205, at 85.
(252.) See supra text accompanying notes 192-93.
(253.) See, e.g., Dominique Mosbergen, What Is Asexuality? A Community's Coming of Age, HUFFINGTON POST (Aug. 21, 2013, 10:46 AM EDT), http://www.huffingtonpost.com/ 2013/06/17/what-is-asexuality_n_3360424.html?1371476978 ("We know that asexual people have been looking for each other for a long time, but it wasn't until the Internet that we found each other." (quoting David Jay)).
(254.) See BOGAERT, supra note 2, at 38.
(255.) On the demand to speak one's sexual truth, see sources cited note 249 above. Interestingly, Foucault anticipated an emerging discourse contrary or oblique to this demand, though presumably not in the form of asexual identity. FOUCAULT, The End of the Monarchy of Sex, supra note 249, at 218 ("A movement is taking shape today which seems to me to be reversing the trend of 'always more sex,' of 'always more truth in sex,'... : it's a matter, I don't say of rediscovering, but rather of fabricating other forms of pleasure, of relationships, coexistences, attachments, loves, intensities. I have the impression of hearing today an 'antisex' grumbling (I'm not a prophet, at most a diagnostician), as if a thorough effort were being made to shake this great 'sexography' which makes us decipher sex as the universal secret.").
(256.) See supra note 149 and accompanying text.
(257.) See supra note 31 and accompanying text.
(258.) See supra notes 29-30 and accompanying text.
(259.) See, e.g., Brian McNaught, Op-Ed., Why Gays Should Come Out at Work, CNN (June 29, 2011, 6:12 AM EDT), http://www.cnn.com/2011/OPINION/06/28/ mcnaught.gays.workplace/index.html; Dave Urbanski, Popular NFL Quarterback: Gay Players Should Come Out "Now', BLAZE (Aug. 14, 2013, 11:32 AM), http://www.the blaze.com/stories/2013/08/14/popular-nfl-quarterback-gay-players-should-come-out-now.
(260.) Arguably polyamory is still one, see, e.g., Emens, supra note 165, at 283, and certainly so is the (very differently situated) pedophilia, see, e.g., Balkin, supra note 74, at 2364-65.
(261.) Cf, e.g., GAVIN HYMAN, A SHORT HISTORY OF ATHEISM, at xv (2010) ("[The] origin, definition and plausibility [of atheism] are inseparable from the 'modern' world-view out of which it arose, and the 'modern' form of religion against which it reacts and defines itself.").
(262.) See, e.g., Jutel, supra note 31, at 1086 ("Possibly as a result of its lack of behaviour and desire, [asexuality] does not draw attention to itself, and has not historically been perceived as morally or legally wrong."); see also Bogaert, supra note 40, at 284; Scherrer, supra note 56, at 637.
(263.) Cf infra note 467 and accompanying text.
(264.) See AVEN Memo, supra note 59.
(265.) See, e.g., N.Y. EXEC. LAW [section] 292(27) (McKinney 2013) ("The term 'sexual orientation' means heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived."); see also infra note 351 (listing several U.S. localities that protect asexuality under antidiscrimination ordinances and citing a U.K. government statement that asexuality is covered under hate crimes law).
(266.) Cf LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 11 (2002) (discussing race as a lens through which to identify broader societal problems); MARTHA MINOW, Sources of Difference, in MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 49, 49-78 (1990) (discussing the problem of unarticulated baselines).
(267.) This is a paraphrase of Eve Sedgwick; for discussion, see Part II.C.1 above.
(268.) On models for thinking about asexuality beyond the current identity category, see Part II.C above.
(269.) See, e.g., Middle Children DO Get Neglected, Admit Parents, DAILy MAIL (Apr. 7, 2009, 6:50 PM EST), http://www.dailymail.co.uk/news/article-1168394/Middle-childrenDO-neglected-admit-parents.html.
(270.) See, e.g., Alexander v. Choate, 469 U.S. 287, 295 (1985) ("Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference--of benign neglect.").
(271.) See, e.g., Harlan Hahn, Disputing the Doctrine of Benign Neglect: A Challenge to the Disparate Treatment of Americans with Disabilities, in AMERICANS WITH DISABILITIES: EXPLORING IMPLICATIONS OF THE LAW FOR INDIVIDUALS AND INSTITUTIONS 269, 269-74 (Leslie Pickering Francis & Anita Silvers eds., 2000); Introduction to Part C, in AMERICANS WITH DISABILITIES: EXPLORING IMPLICATIONS OF THE LAW FOR INDIVIDUALS AND INSTITUTIONS, supra, at 163, 165.
(272.) 133 S. Ct. 2675 (2013).
(273.) Id. at 2689 ("It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.... For others, however, came the beginnings of a new perspective, a new insight."); see also id. at 2693 ("equal dignity"); id. at 2682 ("the concept of same-sex marriage"). On the problems and the potential in Windsor's "equal dignity," see Noa Ben-Asher, Conferring Dignity: The Metamorphosis of the Legal Homosexual, 37 HARV. J.L. & GENDER 2 (forthcoming 2014).
(274.) See, e.g., WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET 1 (1999) (discussing the history of legal persecution and exclusion of homosexuals); Kenji Yoshino, Covering, 111 YALE L.J. 769, 786 (2002) (discussing legal and cultural demands that homosexuals convert).
(275.) Cf. sources cited supra note 249.
(276.) See supra note 266.
(277.) See supra Parts I-II.
(278.) The relationship between status and conduct is a complicated one, but niceties aside, homosexual sex and homosexual identity are closely connected; or as Janet Halley aptly put it,
Of course it is rational to say that homosexuals--real homosexuals, professed homosexuals, or people designated by others as homosexuals for good conventional reasons--are more likely to engage in homosexual sodomy than everyone else. (To my mind that is one of the great things about homosexuals, but I acknowledge that many people disagree with my moral position on this point.)
Janet E. Halley, Romer v. Hardwick, 68 U. COLO. L. REV. 429, 438 (1997).
(279.) See supra note 262.
(280.) These distinctions between sexuals and asexuals may be, to some extent, artificial, see supra Part II.C, but the third question aims to get at the overlap.
(281.) See supra notes 81-82 and accompanying text.
(282.) See, e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 954-57 (Mass. 2003) (listing benefits and responsibilities).
(283.) See, e.g., Berdikas v. Berdikas, 178 A.2d 468, 470 (Del. Super. Ct. 1962) ("An examination of the Digests bring[s] to light many cases in which the Courts have, in instances of ceremonial marriages, held that consummation of such a marriage is not a necessary element to make such marriages valid."); Burnside v. Burnside (In re Marriage of Burnside), 777 S.W.2d 660, 663 (Mo. Ct. App. 1989) ("A ceremonial marriage is valid notwithstanding that it is not consummated by coition.").
(284.) See, e.g., OHIO REV. CODE ANN. [section] 3105.31(F) (LexisNexis 2013); see also Hassan v. Hassan, No. FA010632261, 2001 WL 1329840, at *4 (Conn. Super. Ct. Oct. 9, 2001) ("Applying these principles, we hold that the purported marriage, deficient for want of due solemnization, was voidable rather than void, insofar as the latter term may imply an absolute nullity." (quoting Hames v. Hames, 316 A.2d 379, 385 (Coma. 1972)) (internal quotation mark omitted)); Darling v. Darling, 335 N.E.2d 708, 710 (Ohio Ct. App. 1975) ("A nonconsummated marriage is not void ab initio, but merely voidable."). This may require a finding of fault by the defendant. See Lang v. Reetz-Lang, 488 N.E.2d 929, 931 (Ohio Ct. App. 1985).
(285.) Max Rheinstein, MARRIAGE STABILITY, DIVORCE, AND THE LAW 95 (1972).
(286.) See, e.g., Manbeck v. Manbeck, 489 A.2d 748, 751 (Pa. Super. Ct. 1985); David B. Perlmutter, Annotation, Incapacity for Sexual Intercourse as Ground for Annulment, 52 A.L.R.3d 589 (1973).
(287.) See, e.g., James Lockhart, Cause of Action to Annul Marriage, in 29 CAUSES OF ACTION (SECOND) 431, [section] 12 (West 2013). (Relatedly, courts have tended to focus on the ability to sexually consummate the marriage--rather than the ability or inability to procreate--as relevant to whether transsexuals could legally marry. See, e.g., M.T.v.J.T., 355 A.2d 204, 209, 211 (N.J. Super. Ct. App. Div. 1976).) Note that an alternative interpretation might be that courts focus on impotence rather than infertility because a person is more likely to know about his impotence than his infertility before marriage, so there is more reason to have expected disclosure of the former.
(288.) See Whetstone v. INS, 561 F.2d 1303, 1307-09 (9th Cir. 1977); In re Peterson, 12 I. & N. Dec. 663, 665 (B.I.A. 1968) ("Where a marriage has been duly solemnized in accordance with the laws of the place where it is performed, the marriage comes into existence at that moment regardless of whether it is followed by sexual intercourse.").
(289.) 8 U.S.C. [section] 1101(a)(35) (2012).
(290.) Note also that historically, rape law could be understood to embrace a de facto requirement to submit to unwanted sex in marriage, since the law did not recognize rape as a crime within marriage. See, e.g., Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2174 (1996).
(291.) See supra note 284.
(292.) See supra notes 81-82 and accompanying text.
(293.) See supra notes 286-87 and accompanying text.
(294.) See supra Part III.B. 1.
(295.) See Bogaert, supra note 40.
(296.) Cf supra Part II.C.3.e (considering the possible advantages to asexuals, like homosexuals, of desiring one's own kind on the orientation-object axis).
(297.) See sources cited infra note 301.
(298.) MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 8, 229 (1995) (arguing for vertical parent-child dyads to replace horizontal intimate dyads as the privileged state relationship and for replacing marriage with contractual arrangements).
(299.) See, e.g., Ethan J. Leib, Friendship and the Law, 54 UCLA L. REV. 631,684-705 (2007); Laura A. Rosenbury, Friends with Benefits?, 106 MICH. L. REV. 189, 202-42 (2007).
(300.) See, e.g., Elizabeth F. Emens, Regulatory Fictions: On Marriage and Countermarriage, 99 CALIF. L. REV. 235, 257-69 (2011) (discussing, inter alia, contractarian alternatives). But cf Carol Sanger, A Case for Civil Marriage, 27 CARDOZO L. REV. 1311, 1312 (2006) (expressing skepticism about the ability of a contract law regime to adequately replace marriage law).
(301.) See, e.g., LAW COMM'N OF CAN., BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE PERSONAL ADULT RELATIONSHIPS 117-18 (2001), available at http://www.samesexmamage.ca/docs/beyond_conjugality.pdf; Mary Lyndon Shanley, Afterword to JUST MARRIAGE 109, 112 (Joshua Cohen & Deborah Chasman eds., 2004).
(302.) Laura A. Rosenbury & Jennifer E. Rothman, Sex In and Out of Intimacy, 59 EMORY L.J. 809, 811 (2010).
(303.) See Emens, supra note 165, at 279-80; Emens, supra note 300.
(304.) Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1772-74 (2005).
(306.) See, e.g., Fla. School: "'Non-Platonic" Relations for Benefits (NPR radio broadcast Jan. 23, 2006) (transcript available at http://www.npr.org/templates/transcript/transcript.php? storyld=5168852); see also CAL. FAM. CODE [section] 297(a) (West 2013) (implying conjugality by describing a domestic partnership as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring" (emphasis added)); Case, supra note 304, at 1773 n.66 (contrasting California's marriage and domestic partnership definitions).
(307.) See, e.g., Sanger, supra note 300, at 1316-17.
(308.) On the commodification debates, see the essays collected in RETHINKING COMMODIFICATION: CASES AND READINGS IN LAW AND CULTURE (Martha M. Ertman & Joan C. Williams eds., 2005).
(309.) See supra Part II.A.2.c.
(310.) See Martha C. Nussbaum, "Whether from Reason or Prejudice"." Taking Money for Bodily Services, 27 J. LEGAL STUD. 693, 700-02 (1998).
(311.) Popular claims to this effect are legion, but hard data are hard to come by. On the popular side, Truman Capote famously remarked, "It's a well-known fact that most prostitutes are Lesbians--at least 80 percent of them, in any case. And so are a great many of the models and showgirls in New York." TRUMAN CAPOTE, Playboy Interview, in TRUMAN CAPOTE: CONVERSATIONS 110, 142 (M. Thomas Inge ed., 1987). On the research side, see, for example, BERNADETTE BARTON, STRIPPED: INSIDE THE LIVES OF EXOTIC DANCERS 169 n. 11 (2006) ("My research suggests that the greatest proportion of dancers are bisexual, with an unusually high percentage of lesbians, or women who identify as bisexual in lesbian relationships, compared to the general population.").
(312.) Bernadette Barton, Queer Desire in the Sex Industry, SEXUALITY & CULTURE, Fall 2001, at 3, 16; see also Sex Work and Prostitution: Female, GLBTQ, http://www.glbtq.com social-sciences/sex work female.html (last visited Jan. 29, 2014) ("Lesbians, whose sexuality does not depend upon men, are often better able to separate their private sexual lives from their work in the sex industry, protecting them from some of the psychological damage that straight prostitutes experience.").
(313.) See, e.g., Noah D. Zatz, Sex Work/Sex Act: Law, Labor, and Desire in Constructions of Prostitution, 22 SIGNS 277 (1997).
(314.) See, e.g., Estate of Shapiro v. United States, 634 F.3d 1055, 1059 (9th Cir. 2011); In re Estate of Roccamonte, 808 A.2d 838, 840-41 (N.J. 2002), superseded by statute on other grounds, Act of Jan. 18, 2010, ch. 311, 2009 N.J. Laws 2322, as recognized in Botis v. Estate of Kudrick, 22 A.3d 975, 979 (N.J. Super. Ct. App. Div. 2011); Elizabeth Hodges, Comment, Will You "Contractually" Marry Me?, 23 J. AM. ACAD. MATRIMONIAL LAW. 385, 391 (2010) ("The recent trend has been for courts to enforce these cohabitation agreements under contract law principles, especially when the parties have an express written agreement.").
(315.) 557 P.2d 106, 110 (Cal. 1976) ("The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services."); see also, e.g., Milian v. De Leon, 226 Cal. Rptr. 831,835 (Ct. App. 1986) ("[T]he only limitation upon the fight of unmarried persons to contract with respect to their property and financial arrangements is that the contract must not be illegal or against public policy.... lit cannot] rest upon the immoral and illicit consideration of meretricious sexual services." (quoting Marvin, 557 P.2d at 112) (internal quotation mark omitted)).
(316.) See RESTATEMENT (SECOND) OF CONTRACTS ch. 16, intro, note (1981) ("The traditional goal of the law of contract remedies has not been compulsion of the promisor to perform his promise but compensation of the promisee for the loss resulting from breach."); id. [section] 367 ("A promise to render personal service will not be specifically enforced.").
(317.) See id. [section] 79 cmt. c.
(318.) Cf supra note 81 and accompanying text.
(319.) See, e.g., David P. Bryden, Redefining Rape, 3 Bury. CRIM. L. REV. 317, 433-34 (2000) (describing the "traditional view that rape is a uniquely devastating type of assault" and observing that "penalties for rape and related offenses are greater than for assault").
(320.) See, e.g., Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COLUM. L. REv. 391,393 (1963) ("Obscenity--sexual or scatological--is forbidden, in large part, not because it incites but because it offends. A state forbids obscenity--and nudity, 'indecent exposure,' graffiti--as it forbids public fornication and public excretion, because it is offensive to others. The state seeks to suppress or abate these noxious emanations on grounds akin to traditional notions of 'nuisance.'").
(321.) See, e.g., Mary Anne Case, Why Not Abolish the Laws of Urinary Segregation?, in TOILET: PUBLIC RESTROOMS AND THE POLITICS OF SHARING 211,218-19 (Harvey Molotch & Laura Noren eds., 2010); see also Mary Anne Case, All the World's the Men's Room, 74 U. CHI. L. REV. 1655 (2007); Jennifer Levi & Daniel Redman, The Cross-Dressing Case for Bathroom Equality, 34 SEATTLE U. L. REV. 133, 133 (2010).
(322.) The unit is also for trans inmates, but much of the emphasis among the selecting deputies, and therefore in prominent writing about the unit, appears to be on gay inmates; this is my focus here as well. See infra note 323.
(323.) Russell K. Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration, 99 CALIF. L. REV. 1309 (2011).
(324.) See id. at 1323-24. Of course people have sex--in prison and elsewhere---for many reasons other than desire. Being housed in an asexual jail would be no guarantee against sexual predation.
(325.) On situation-specific homosexuality, see id. at 1360 & n.220.
(326.) It may also be worth noting that prison more generally might impose lesser burdens on asexuals in one very narrow way: for people who do not feel sexual attraction, confinement does not deprive asexuals of sexual activities that they desire. I thank Lior Strahilevitz for this point.
(327.) See supra note 63.
(328.) Moreover, asexual job candidates could offer a way around the demand for women or men in these roles and therefore avoid a legal tangle with the high bar for sex-specific hiring: the bona fide occupational qualification analysis, which has a limited sexual privacy exception. See, e.g., Amy Kapczynski, Note, Same-Sex Privacy and the Limits of Antidiscrimination Law, 112 YALE L.J. 1257, 1259 (2003). But cf Emily Gold Waldman, The Case of the Male OB-GYN: A Proposal for Expansion of the Privacy BFOQ in the Healthcare Context, 6 U. PA. J. LAB. & EMP. L. 357, 382-88 (arguing that the sexual privacy exception should be expanded).
(329.) See infra notes 330-32 (citing works offering competing normative perspectives on sexual harassment law).
(330.) See, e.g., Reva B. Siegel, Introduction to DIRECTIONS IN SEXUAL HARASSMENT LAW 1, 27 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004).
(331.) CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 105 (1987).
(332.) Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061, 2063-64 (2003); see also Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. t. REV. 691, 770 (1997); Janet Halley, Sexuality Harassment, in DIRECTIONS IN SEXUAL HARASSMENT LAW, supra note 330, at 182, 192, 198; Rosenbury & Rothman, supra note 302, at 865.
(333.) Asexuals often complain about the deluge of sexual themes and content throughout our culture. See, e.g., Throne Eins, Comment to Some Blunt Questions, Asexual Q&A, ASEXUAL VISIBILITY & EDUC. NETWORK (July 15, 2008, 9:44 PM), http://www.asexuality.org/en/index.php?/topic/32908-some-blunt-questions ("I get annoyed when I watch movies or tv shows or read books and there's pointless sex crammed in there because it's not 'normal' for people, even fictional ones, to not engage in sexual practices."). This is only one of several available attitudes to take toward sexual content, however. See supra Part II.A.2.c.
(334.) 523 U.S. 75, 81 (1998) (emphasis added).
(335.) On the so-called sex wars between feminists who emphasize sex as pleasure and those who emphasize sex as danger, see, for example, Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REV. 181, 182-83 (2001); and Carole S. Vance, Pleasure and Danger: Toward a Politics of Sexuality, in PLEASURE AND DANGER: EXPLORING FEMALE SEXUALITY 1,3 (Carole S. Vance ed., 1984).
(336.) Vicki Schultz, Reconceptualizing Sexual Harassment, 107 YALE L.J. 1683, 168687 (1998). Schultz would prefer that courts emphasize harassment that undermines an employee's workplace competence on the basis of gender, rather than focusing on whether an alleged harasser expressed desire. Id at 1689.
(337.) See, e.g., Grace S. Ho, Not Quite Rights: How the Unwelcomeness Element in Sexual Harassment Law Undermines Title V11's Transformative Potential, 20 YALE J.L. & FEMINISM 131, 139, 157 (2008). I thank Bridget Crawford for highlighting the unwelcomeness point.
(338.) Cf, e.g., Miller v. Bank of Am., 418 F. Supp. 233, 236 (N.D. Cal. 1976), rev'd, 600 F.2d 211 (9th Cir. 1979).
(339.) Oncale, 523 U.S. at 81.
(340.) See, e.g., Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) ("Whether the workplace is objectively hostile must be determined from the perspective of a reasonable person with the same fundamental characteristics."); Penny L. Cigoy, Harmless Amusement or Sexual Harassment?: The Reasonableness of the Reasonable Woman Standard, 20 PEVP. L. REV. 1071, 1110 (1993) ("The [reasonable woman] standard .... unlike the reasonable person standard, unequivocally communicates that the particular victim is the main focus, whether male or female.").
(341.) See supra notes 114-15 and accompanying text.
(342.) See supra Part II.B.l.c.
(343.) Cf, e.g., Sherman, supra note 65, at 681-83; DJ DJ, Asexy Politics: Asexuality and the Law, LOVE FROM ASEXUAL UNDERGROUND (Feb. 17, 2012), http://asexual underground.blogspot.com/2012/02/asexy-politics-asexuality-and-law.html.
(344.) See supra Part III.C. 1.
(345.) Cf., e.g., MINOW, supra note 266, at 74-78.
(346.) See supra note 250 and accompanying text. Historically, for homosexuals, he could have been thinking of the repeal of sodomy laws, but that had already happened by the time of the quotation. See Lawrence v. Texas, 539 U.S. 558 (2003).
(347.) See AVEN Memo, supra note 59.
(348.) Sexual Orientation Non-Discrimination Act, ch. 2, [section] 3, 2002 N.Y. Laws 46, 46 (codified at N.Y. ExEc. LAW 8 292(27) (McKinney 2013)).
(349.) Vermont's Human Rights Commission has issued a pamphlet defining "sexual orientation" to include asexuality, but the legislature has not acted to codify this change. See TRACY TSUGAWA, VT. HUMAN RIGHTS COMM'N, GENDER IDENTITY 1 (2010), available at http://hrc.verm~nt.gov/sites/hrc/files/pdfs/harassment%2docs=/gender%20sex%20sexual%2 0orientation%20definitions.doc (proposing a definition of"[s]exual [o]rientation (a protected category in Vermont)" that includes "[a]sexual[s]" and is defined as "who you are emotionally and sexually attracted to: opposite sex, same sex, both sexes, or neither"). On the draft legislation from Australia that included asexuality, but never passed in that form, see note 362 below.
(350.) See, e.g., Telephone Interview with Ross Levi, Exec. Dir., Empire State Pride Agenda (Feb. 3, 2012); Telephone Interview with Steve Sanders, Former N.Y. Assemblymember (Feb. 10, 2012).
(351.) The U.S. localities with asexuality protections are, in order of passage, the following seven cities and one county: Albany, N.Y. (1992); Albany County, N.Y. (1996); Rochester, N.Y. (2001); Hamburg, N.Y. (2005); Binghamton, N.Y. (2008); Madison, Wis. (2010); Hyattsville, Md. (2013); and San Antonio, Tex. (2013). See Ed McMullen, County Legislature Approves Gay-Rights Bill by 24-13 Vote, ALTAMONT ENTERPRISE (N.Y.), Mar. 14, 1996, at 6 (reporting passage of the 1996 Albany County law and noting that the 1992 Albany city ordinance "define[d] sexual orientation as 'actual or perceived heterosexuality, homosexuality, asexuality, or bisexuality'"); ROCHESTER, N.Y., MEN. CODE [section] 63-2 (2013); PROCEEDINGS OF THE COUNCIL OF THE CITY OF ROCHESTER 2001, at 114, 116 (2001), available at http://www.cityo frochester.gov/WorkArea/linkit.aspx?Linkldentifier=id&ItemlD=8589941914 (noting Act was "amended in its entirety 3-14-2005"); HAMBURG, N.Y., GEN. CODE [section] 109-2 (2013) (showing initial adoption date of Dec. 15, 2008, and amendments to definitions section on Feb. 2, 2009, and Mar. 17, 2010); BINGHAMTON, N.Y., CODE or ORDINANCES 8 45-3 (2013); MADISON, WIS., CODE Or ORDINANCES 88 39.02(1), 39.03(2)(ii) (2013) (establishing an affirmative action program to "increase the number and representation of affected and/or underrepresented groups" in city employment and contracting, which covers "sexual orientation," defined as "the sexual or loving attraction to another person or the complete absence thereof to any other person" which "can span a non-static continuum from same-sex attraction at one end to opposite-sex attraction to an absolute lack of attraction to any gender"); Hyattsville, Md., Ordinance 2013-04 (Nov. 13, 2013); SAN ANTONIO, TEX., CODE ORDINANCES [section][section] 2-550 to -551 (2013); Manny Fernandez, San Antonio Passes Far-Reaching Antidiscrimination Measure, N.Y. TIMES (Sept. 5, 2013), http://www.nytimes.com/ 2013/09/06/us/san-antonio-passes-far-reaching.antidiscrimination_measure.html.
Interestingly, the first instance of legal protection for asexuality appears to be a 1988 regulation implementing Governor Mario Cuomo's Executive Order 28.1, which banned discrimination on the basis of sexual orientation in state organizations without defining sexual orientation. See 10 N.Y. Reg. 96 (Mar. 2, 1988) (defining "sexual orientation" to include "asexuality"); 9 N.Y. COMP. CODES R. & REGS. tit. 9, [section] 4.28 (1983) (prohibiting state agencies from discriminating on the basis of "sexual orientation," left undefined). For more detail about this regulation and related history, see Gray & Emens, infra note 353. Beyond U.S. borders, the U.K. government's recent "Hate Crime Action Plan" interprets the 2008 Criminal Justice and Immigration Act to include "asexuals" among the sexual orientation groups protected. U.K HOME OFFICE, CHALLENGE IT, REPORT IT, STOP IT: THE GOVERNMENT'S PLAN FOR DEALING WITH HATE CRIME 4 (2012), available at https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/97850/easy-read-hate-crime-action-plan.pdf; see also Criminal Justice and Immigration Act, 2008, c. 4, [section] 74 (U.K.).
(352.) See supra note 351 (giving a chronology of local laws). On the passage of SONDA in December 2002, see Shaila K. Dewan, Pataki Signs Law Protecting Rights of Gays, N.Y. TIMES (Dec. 18, 2002), http://www.nytimes.com/2002/12/18/nyregion/pataki-signs-lawprotecting-rights-of-gays.html.
(353.) See Timothy H. Gray & Elizabeth F. Emens, A Timeline of Asexuality's Emergence in New York Law and Beyond (Jan. 26, 2014) (unpublished manuscript) (on file with author). Timothy Gray engaged in heroic sleuthing efforts to help reconstruct this history.
(354.) See Eric T. Schneiderman, The Sexual Orientation Non-Discrimination Act ("SONDA "'), N.Y. STATE ATT'Y GEN., http://www.ag.ny.gov/civil-rights/sonda-brochure (last visited Jan. 29, 2014).
(355.) I am very grateful to Suzanne Goldberg for helping me contact those involved in drafting and passing the legislation, and also to everyone who was generous enough to take the time to convey to me their memories of this process.
(356.) Telephone Interview with Ross Levi, supra note 350; Telephone Interview with Steve Sanders, supra note 350.
(357.) Telephone Interview with Steve Sanders, supra note 350. According to this source, the language was "affectional or sexual preference," defined as "having or manifesting an emotional or physical attachment to another consenting person or persons of either gender; or having or manifesting a preference for such attachment." Write Your Legislators, EMPTY CLOSET, Apr. 1983, at 1, 1 (reproducing text of bills).
(359.) Telephone Interview with Ross Levi, supra note 350; Telphone Interview with Steve Sanders, supra note 350.
(360.) E-mail from Susan Russell, Former Assistant Counsel, Joint Legislative Bill Drafting Comm'n, to author (Jan. 26, 2014) (on file with author) ("I do believe that asexuality was ultimately put in to foreclose the debate Re paraphilias that had no connection to what we were trying to do and always derailed discussion. And also to cover the gamut of sexualities that should legitimately be included."); see also Telephone Interview with Steve Sanders, Former N.Y. Assemblymember (Jan. 24, 2014) (making similar comments about the potential of a delineated definition of "sexual orientation," including asexuality, to distinguish sexual orientation from "bestiality" or sex with a minor, and to give "context" for sexual orientation rather than "just letting people use their imagination").
(361.) E-mail from Libby Post, President & CEO, Commc'n Servs., to author (Feb. 16, 2012) (on file with author) ("When the non-discrimination bill was first introduced in 1985 it was sexual preference. By the time I got directly involved with hate crime legislation is [sic] 1989 it was sexual orientation.").
(362.) In contrast to the account offered here, one person who looked into this issue suggested that the idea might have come somehow from an Australian sexuality discrimination bill from 1996, which included asexuality. See Posting of Hexa Quark, firstname.lastname@example.org, to email@example.com (Nov. 21,2011) (on file with author). The draft legislation is available, see Sexuality and Gender Identity Discrimination Bill 2003 (Cth) pt 1 s 5 (Austl.), but it apparently died in 2008, see Sexuality and Gender Identity Discrimination Bill 2003 , PARLIAMENT AUSTL., http://www.aph.gov.au/Parliamentary_Business/Bills Legislation/Bills Search Results/Res ult?bld=s404 (last visited Jan. 29, 2014) (noting bill "[l]apsed at end of Parliament" in 2008). A new version of the bill, which does not include asexuality, passed in 2013. Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (Austl.); see AUSTL. HUMAN RIGHTS COMM'N, SEXUAL ORIENTATION, GENDER IDENTITY & INTERSEX STATUS DISCRIMINATION INFORMATION SHEET 1-2 (2013) ("From 1 August 2013 it will be unlawful under federal law to discriminate against a person on the grounds of their sexual orientation, gender identity, [or] intersex status.... Sexual orientation means a person's sexual orientation towards: a) persons of the same sex or b) persons of a different sex or c) persons of the same sex and persons of a different sex."), available at https://www.humanrights.gov.au/sites/default/files/information%20sheet%20on%20new%2 0protections%20in%20the%20Sex%20Discrimination%20Act%20-%20F1NAL.pdf.
(363.) Telephone Interview with Steve Sanders, supra note 350.
(364.) E-mail from Dick Dadey, Exec. Dir., Citizens Union, to author (Feb. 8, 2012) (on file with author) ("It wasn't [the idea of] anyone within our movement, but rather straight legislative allies who were trying to combat the opposition's statements that this was about protecting behavior and not orientation and trying to be 'inclusive,' of whom, I don't know.").
(366.) Telephone Interview with Steve Sanders, supra note 350.
(369.) See, e.g., Cary Franklin, Inventing the "Traditional Concept" of Sex Discrimination, 125 HARV. L. REV. 1307, 1318 (2012). For a recent attempt by an opponent to include asexuality in a proposed local ordinance covering sexual orientation, however, see note 484 below.
(370.) Telephone Interview with Steve Sanders, supra note 350. When asked who actually had the idea to include "asexuality," Sanders responded by saying, "I don't know. It might have been me." Id.
(371.) Id. Sanders's remarks on this point are consistent with the views expressed by Richard Redlo, who drafted the original version of an Albany city ordinance, enacted in 1992, that covered "asexuality" as part of "sexual orientation." See Telephone Interview with Richard Redlo, Former N.Y. Assistant Att'y Gen. (Jan. 22, 2014); Greg B. Smith, Homosexual Rights Debate Looms in Albany: Alderwoman Seeks to Amend Anti-Bias Laws, ALBANY TIMES UNION (Mar. 9, 1987), http://albarchive.merlinone.net/mweb/wmsql.wm.request? oneimage&imageid=5408290 (naming Richard S. Redlo as the drafter). One person I spoke to emphasized, however, that the local movement did not include any self-identified asexuals, remarking: "Please don't let this feed some 'asexuals were there from the start' story line. If it was true--yes--but in all my dealings with every part of our movement no one has ever identified her/himself as an asexual." E-mail from Matt Foreman, Former Exec. Dir., Empire State Pride Agenda, to author (Feb. 8, 2012) (on file with author). Foreman also remarked, at the outset of the inquiry, "I do know it wasn't because of asexual activists storming the gates!" E-mail from Matt Foreman, Former Exec. Dir., Empire State Pride Agenda, to Suzanne Goldberg, Professor of Law, Columbia Law Sch. (Feb. 8, 2012) (on file with author).
(372.) See supra note 352.
(373.) This is consistent with what everyone I consulted indicated, as well as with my own investigations and those of my excellent research assistants. E.g., E-mail from Matt Foreman to Suzanne Goldberg, supra note 371 ("It never came up in a serious way during my tenure.").
(374.) See NAT'L GAY & LESBIAN TASK FORCE, STATE NONDISCRIMINATION LAWS IN THE U.S. (2013), available at http://www.thetaskforce.org/downloads/reports/issue_maps/ non_discrimination_6_13_color.pdf.
(375.) The only exceptions are Minnesota, which does not define sexual orientation using subcategories, see MINN. STAT. [section] 363A.03(44) (2013), and New York, which also includes asexuality, see N.Y. EXEC. LAW [section] 292(27) (McKinney 2013), as discussed above. Seventeen states and the District of Columbia also prohibit discrimination on the basis of gender identity or expression, with some including it in their definition of sexual orientation. NAT'L GAY & LESBIAN TASK FORCE, supra note 374.
(376.) S. 811, 112th Cong. [section] 3(a)(9) (2011); H.R. 1397, 112th Cong. [section] 3(a)(9) (2011). ENDA was passed only by the Senate. See Ed O'Keefe, Senate Votes to Ban Discrimination Against Gay and Transgender Workers, WASH. POST. (Nov. 7, 2013), http://www.washingtonpost.com/politics/senate-set-to-approve-gay-rights-bill/2013/11/07/ 05717e4a-47c-1-11-e3-a 196-3544a03c2351_story.html.
(377.) See AVEN Memo, supra note 59.
(378.) For an argument that disgust is a primary factor in negative responses to homosexuality to this day, see MARTHA C. NUSSBAUM, FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION AND CONSTITUTIONAL LAW (2010).
(379.) They may come into conflict with religious prescription, however. See infra note 391 and accompanying text.
(380.) I highlight perceived cost here, because there are reasons to think that the perceived cost of disability accommodations often exceeds the actual cost. See, e.g., Elizabeth F. Emens, Integrating Accommodation, 156 U. PA. L. REV. 839, 868 (2008).
(381.) Cara C. MacInnis & Gordon Hodson, Intergroup Bias Toward "Group X": Evidence of Prejudice, Dehumanization, Avoidance, and Discrimination Against Asexuals, 6 GROUP PROCESSES & INTERGROUP REL. 725 (2012).
(382.) Id. at 731 (emphasis omitted) (footnote omitted) (reporting on a university sample); see also id. at 735-36 (reporting similar results from the community sample).
(383.) Id. at 731-32 (reporting on the student sample); see also id. at 735-36 (reporting on the community sample). Interestingly, whereas the student subjects largely viewed all three minority groups as less human than heterosexuals, the community subjects saw asexuals alone as less human than members of the other three groups. Id. at 731-32, 735-36. This view of asexuals as not quite human is something asexuals anecdotally report encountering. See, e.g., Mosbergen, supra note 77 ("There was this really strong ethos that sex is a vital part of the human experience and without it, there's something wrong.").
(384.) On this metric, among student subjects, bisexuals fared worse than either homosexuals or asexuals (or, of course, heterosexuals). MacInnis & Hodson, supra note 381, at 732. Among the community-based subjects, asexuals fared the worst, but the differences among the minority groups were not significant; the only significant finding was that heterosexuals were less willing to hire, or rent to, any sexual minorities than other heterosexuals. Id. at 736. Interestingly, religious fundamentalism, in conjunction with other factors, correlated with bias against asexuals, as it does with bias against homosexuals and bisexuals. Id. at 733.
(385.) Some of the reason for this may be that asexuals are, on average, so young as to have had few work experiences thus far. See AVEN Memo, supra note 59; see also supra note 51.
(386.) In that small study of self-reported experiences, asexuals largely replied "[n]ot [a]pplicable" to questions about their experiences of anti-asexual discrimination in a range of contexts, such as the workplace. Stephanie B. Gazzola & Melanie A. Morrison, Asexuality: An Emergent Sexual Orientation, in SEXUAL MINORITY RESEARCH IN THE NEW MILLENNIUM 21, 31-32 (Todd G. Morrison et al. eds., 2012) (reporting on a study of thirty-nine asexual subjects). But the results are misleading, since the study also indicated that the subjects were generally not "out" (open about their asexuality) in those contexts, which presumably explains why they found a question about discrimination not applicable to them. Id. at 33 tbl.2. The authors surmise that "[n]ot [a]pplicable" means either that "the participant does not have contact with the individual(s) in question (e.g., teachers) or that they believe the item is not applicable to their asexual identity in general." Id. at 35. Yet their own findings suggest that, for example, only 13.6% of the subjects were out to "[w]ork peers," id. at 33, which is three subjects--the same number of subjects who supplied any answer other than "In]or [a]pplicable" to a question addressing unfair treatment by coworkers. The "[n]ot [a]pplicable" responses may thus reflect the fact that the respondents were not out at work, and perhaps also that they had not otherwise heard work peers make comments about asexuals--unsurprising given that most people apparently haven't heard of asexuality. See supra note 66 and accompanying text.
(387.) Cf, e.g., MacInnis & Hodson, supra note 381, at 739-40 (noting the frequent irrationality of discrimination).
(388.) Cf. supra Part II.C.3 (discussing the possibility of a paradox of prevalence driving negative responses to asexuality).
(389.) Consider Justice Scalia's apparently troubled response to the idea that laws against masturbation might fall in the wake of Lawrence v. Texas. See, e.g., Mary Anne Case, Of "This" and "That" in Lawrence v. Texas, 2003 SUP. CT. REV. 75, 78 (discussing Justice Scalia's dissent).
(390.) See Dominique Mosbergen, Battling Asexual Discrimination, Sexual Violence and "Corrective" Rape, HUFFINGTON POST (Nov. 12, 2013, 3:38 AM EST), http://www.hufflngtonpost.com/2013/06/20/asexual-discrimination n 3380551.html?13717 33068 (quoting Julie Decker, a.k.a. Swankivy, as saying that "[s]exual harassment and violence, including so-called 'corrective' rape, is disturbingly common in the ace community" and noting that she "has received death threats and has been told by several online commentators that she just needs a 'good raping'"); id. (quoting, from a response to a blog post about the problem of corrective rape, an anonymous poster's writing, "[A]sexuality is not a thing. You are just ugly and no one wanted to date you, so you made up a thing to cuddle your lonely self as you cry into your pillow. Also, I hope you get raped. It has a dual benefit, you'll get laid finally AND put you into your place as well." (alteration in original) (internal quotation marks omitted)).
(391.) See, e.g., Significantlysilent, Comment to Christianity, the Bible, and Asexuality, Asexual Musings and Rantings, ASEXUALITY VISIBILITY & EDUC. NETWORK (Apr. 3, 2012, 2:57 PM), http://www.asexuality.org/en/topic/72943-christianity-the-bible-and-asexuality ("[M]y mother believes that Asexuality does not exist because 'God did not create one to be that way' and 'it's not Godly.' My sister said the same thing, along with that it is not 'normal' or 'how God created us to be.'"); see also Shawn Landis, Is Asexuality a Sin? Few Religions Have an Official Viewpoint, EXAMINER.COM (Feb. 22, 2010), http://www.examiner.com/article/is-asexuality-a-sin- few-religions-have-an-official-viewpoint ("Even though few religions have an official position on asexuality, there are still people who will mistakenly identify it as a sin. The mistaken identification of asexuality as a sin comes from either mistaking an asexual for being gay, or assuming that go forth and multiply was one of the commands intended to apply to everyone indefinitely.").
(392.) See supra notes 381-83 and accompanying text.
(393.) See ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 5 (1963) ("By definition, of course, we believe the person with a stigma is not quite human."); see also, R.A. Lenhardt, Understanding the Mark." Race, Stigma, and Equality in Context, 79 N.Y.U.L. REV. 803, 817-19 (2004) (discussing the definition of stigma).
(394.) See supra note 249.
(395.) See generally, e.g., Nancy Fraser, From Redistribution to Recognition? Dilemmas of Justice in a Post-Socialist Age, NEW LEFT REV., July-Aug. 1995, at 68, 76-79, 87.
(396.) Swankivy, Asexuality: An Introduction, supra note 121.
(397.) See supra Part II.C. 1 (discussing a minoritizing model of asexuality and its potential strategic advantages). More generally, on the desire to stop answering questions about one's identity, drawing on examples from the disability context, see Elizabeth F. Emens, Shape Stops Story, 15 NARRATIVE 124, 130 (2007).
(398.) See supra note 231 and accompanying text.
(399.) See supra Part II.C.3 (discussing a quantity axis of sexuality).
(400.) As noted earlier, the asexuality movement recognizes degrees of asexuality through terms like "gray-A" and "demisexual." See supra notes 160-64 and accompanying text.
(401.) On the problem of the law's devaluing of intimate non-sexual relationships, see Part III.B.2 above. For instance, on "Boston marriages"--a term historically used to describe two women cohabiting in a nonsexual relationship--see the thoughtful and varied contributions to BOSTON MARRIAGES: ROMANTIC BUT ASEXUAL RELATIONSHIPS AMONG CONTEMPORARY LESBIANS, supra note 30. On committed friendships, see, for example, David L. Chambers, For the Best of Friends and for Lovers of All Sorts, a Status Other than Marriage, 76 NOTRE DAME L. REV. 1347, 1348 (2001). See also Leib, supra note 299, at 705-06 ("[T]he law has no self-conscious, consistent, or well-considered approach to friendships and its role in regulating them.... There is something haphazard about the law's approach to friendship....").
(402.) A minoritizing conception of asexuality, to use Eve Sedgwick's term, could force people to choose to identify as asexual or not, rather than having more flexibility to explore the complexities or fluctuations in their identity. Cf Faderman, supra note 30, at 36-37 (discussing the historical shift around the recognition of lesbian sexual relationships, which left less room for nonsexual relationships between women, since they fell under new suspicion of lesbianism).
(403.) As an example, there is a vast literature on the struggles over the definition of disability. See, e.g., Jill C. Anderson, Just Semantics: The Lost Readings of the Americans with Disabilities Act, 117 YALE L.J. 992 (2008).
(404.) See supra note 134 (discussing the possibility that some people claim asexuality in response to sexual abuse, but noting also that the data in this area are not conclusive). In terms of partners' sexuality, various work emphasizes the ways that female sexuality is more often misunderstood or unappreciated by (often male) partners; one might therefore worry that the availability of an attribution of asexuality could fall more harshly on women. Cf Emens, supra note 164, at 1357 ("As sex-positive feminism has highlighted.... the last thing women in particular need is another reason to suppress, critique, or feel bad about what turns them on.").
(405.) These effects may fall more harshly on those who share features of the minority identity but do not have the solace and support of affiliation with the minority community.
(406.) See supra note 373 and accompanying text.
(407.) On the politics of recognition, see generally Fraser, supra note 395.
(408.) Cf Van Koten v. Family Health Mgmt., Inc., 134 F.3d 375, 1998 WL 54615 (7th Cir. Feb. 6, 1998) (unpublished table decision) (upholding summary judgment against a man who claimed that he was discriminated against because he was a Wiccan and whose vegetarian diet was a salient fact in the case); Zachary A. Kramer, Of Meat and Manhood, 89 WASH. U. L. REV. 287, 292 & n.28, 293 (2011) (discussing the case and related issues).
(409.) One might say that we generally don't protect most kinds of weirdness, such as veganism (which is of course deemed weird only in some communities), but we instead protect only those forms of weirdness that fall along certain axes of identity. In this way, though, asexuality can still be compared to Wicca, which is protected as a religion, although an unusual one. Whether asexuality is better thought of as one of the four central sexual orientations-along with heterosexuality, homosexuality, and bisexuality, as Storms hypothesized, see supra Part I.A--or whether it is best understood as an umbrella orientation, alongside sexual orientation, see supra note 248 and accompanying text (discussing Chasin's point to this effect)--asexuals may face prejudice similar to or greater than that against gays and bisexuals. See MacInnis & Hodson, supra note 381; supra notes 381-86 and accompanying text. In addition, on the analogy between asexuality and atheism, see note 487 below and accompanying text.
(410.) See, e.g., Kavita B. Ramakrishnan, Inconsistent Legal Treatment of Unwanted Sexual Advances: A Study of the Homosexual Advance Defense, Street Harassment, and Sexual Harassment in the Workplace, 26 BERKELEY J. GENDER L. & JUST. 291, 320-21 (2011); cf supra note 390 (citing sources on violence as a response to asexuality).
(411.) Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77 (1998) (holding that same-sex harassment can be "because of ... sex" and thus finding sexual harassment in a fact pattern involving aggressive hazing aboard an all-male ship).
(412.) 697 F. Supp. 1452, 1453-54, 1456 (N.D. Ill. 1988) (internal quotation marks omitted) (dismissing Goluszek's sexual harassment claim on the grounds that he "was a male in a male-dominated environment"), abrogated by Oncale, 523 U.S. 75.
(413.) Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (alteration in original) (internal quotation marks omitted).
(414.) See, e.g., Baker v. Starwood Hotel & Resort Worldwide, Inc., No. Civ.A. 98-2076, 1999 WL 397405, at *3 & n.26 (E.D. La. June 15, 1999) (noting that "[c]ourts have set a high bar for what constitutes sufficiently severe and pervasive harassment for the purposes of a claim of a hostile work environment" and summarizing cases). For instance, it is hard to imagine that the account given in this post, Barnacle Strumpet, Was I Fired Because of My Asexuality?, ASEXUAL CUPCAKE (Aug. 10, 2011), http://thecupcakeace.wordpress.com/ 2011/08/10/was-i-fired-because-of-my-asexuality, would meet the standard. There is a limited contract-law precedent for a remedy granted to an individual fired for refusing to participate in sexual antics; in a case from the 1980s, a plaintiff in such a scenario received relief through contract law by arguing that the termination was against public policy, but the rationale has been criticized, and the result was superceded by statute. See Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1035 (Ariz. 1985), superseded by statute, Employment Protection Act, ch. 140, 1996 Ariz. Sess. Laws 683, as recognized in, Chaboya v. Am. Nat'l Red Cross, 72 F. Supp. 2d 1081, 1092 (D. Ariz. 1999).
(415.) On the links to Asperger's Syndrome, see notes 202-03 above and accompanying text.
(416.) See Verp, Comment to Asexual Discrimination?, Asexual Musings and Rantings, ASEXUALITY VISIBILITY & EDUC. NETWORK (Mar. 17 2012, 12:10 AM), http://www.asexuality.org/en/index.php?/topic/72206-asexual-discrimination ("Some people [i]n the field of youth work are of the opinion that one cannot be a youth worker if one is asexual, because you need to have sexual experience in order to be able to work out sex-related issues with youngsters. I have been unjustly targeted by these people in a couple of occasions.").
(417.) 42 U.S.C. [section] 2000e-2(e)(1) (2011). Various employers seek employees who have sex appeal, see, e.g., Kimberly A. Yuracko, Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination, 92 CALIF. L. REV. 147, 149-50 (2004), but these fields raise the interesting question of whether sexuals necessarily find asexuality not to be sexy. On the side of answering in the negative, we might think of the many contexts--including classical romantic pursuit of women--in which lack of interest or availability, or even a pure sexless quality, is thought to spur desire in the pursuer.
(418.) See supra Part III.C. 1 (discussing the perspective asexuality offers on the sex work debates, and noting sources asserting that lesbians are prevalent in the male-oriented sex-work industry).
(419.) See supra Part III.B.
(420.) See MacInnis & Hodson, supra note 381.
(421.) See supra note 393 and accompanying text.
(422.) See supra note 381 and accompanying text.
(423.) See supra Part III.A-D.
(424.) See supra Part III.E.2.c; see also AVEN Memo, supra note 59, at 2 (discussing reasons to think that more asexuals will be entering the workforce and coming out as the population of very young asexuals gets older).
(425.) See supra Part III.E.2.b.
(426.) The two central principles in U.S. antidiscrimination law are antisubordination and antidifferentiation (or anticlassification). See, e.g., Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. MIAMI L. REV. 9, 10-I 1 (2003). Under antidifferentiation, aspects of identity not relevant to job performance should not influence decisions about individual employees. Under antisubordination, employers should not make decisions that contribute to the systematic subordination of certain groups. Id. at 9-10. These principles intersect in complicated ways, and for asexuals, the antisubordination argument would need to be oriented largely toward the future rather than the past, a break from its traditional purview. Cf Jessica L. Roberts, The Genetic Information Nondiscrimination Act as an Antidiscrimination Law, 86 NOTRE DAME L. REV. 597,630-34 (2011) (discussing the application of antisubordination principles to support a law anticipating future discrimination). But if the data on substantial discriminatory attitudes toward asexuals are valid, then either theory could support protection: in general terms, the one because employers should not make decisions based on this morally neutral criterion which is irrelevant to the job but important to identity (antidifferentiation), and the other because adverse employment actions on this basis could lead to systematic subordination of asexuals as a group (antisubordination).
(427.) See, e.g., STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES 45-46 (1999).
(428.) Cf, e.g., CROSBY BURNS, CTR. FOR AM. PROGRESS, THE COSTLY BUSINESS OF DISCRIMINATION: THE ECONOMIC COSTS OF DISCRIMINATION AND THE FINANCIAL BENEFITS OF GAY AND TRANSGENDER EQUALITY IN THE WORKPLACE 1, 27 (2012), available at http://www.americanprogress.org/issues/2012/03/pdf/lgbt_biz discrimination.pdf (discussing annual costs of $64 billion for workplace discrimination, including the costs of "workers who leave their jobs each year due to unfairness and discrimination" and workplace training).
(429.) See, e.g., Christine Jolls, Commentary, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642,686-88 (2001).
(430.) See, e.g., RICHARD THOMPSON FORD, THE RACE CARD: HOW BLUFFING ABOUT BIAS MAKES RACE RELATIONS WORSE 174-77 (2008).
(431.) This would require axis-based protection for sexuals and asexuals alike, which is even less likely to present itself in the near future. But it is possible that, under such a law, a sexual employee could bring a lawsuit that he was not hired because of his "sexuality," if the company preferred an asexual employee based on lesser odds of sexual harassment lawsuits. Analyzing the merits would be complicated and interesting. On the hypothetical prospects for favorable treatment of asexuality in hiring for some jobs, see text accompanying notes 326-28 above.
(432.) See, e.g., Joan C. Williams, Keynote Address: Want Gender Equality? Die Childless at Thirty, 27 WOMEN'S RTS. L. REP. 3, 3-4 (2006).
(433.) Cf Burns, supra note 428, at 37.
(434.) Come v. Bausch & Lomb, Inc., 390 F. Supp. 161, 163-64 (D. Ariz. 1975) (dismissing the plaintiffs' claim), vacated without opinion, 562 F.2d 55 (9th Cir. 1977).
(435.) Mary Anne Case, A Few Words in Favor of Cultivating an Incest Taboo in the Workplace, 33 VT. L. REv. 551,552-53 (2009).
(436.) See supra Part III.D. 1.
(437.) Most obviously, some, but not all, of these criteria intersect with factors in the Court's suspect-classification analysis, but the approach I present here, unlike suspect-classification analysis or the defenses of it on political-process grounds, is a descriptive not a normative theory.
(438.) See infra Part III.E.3.b.
(439.) See, e.g., Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 503 (1994); Cass R. Sunstein, Homosexuality and the Constitution, 70 IND. L.J. 1, 9 (1994); Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063, 1073 (1980).
(440.) See, e.g., In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008) (explaining that sexual orientation is "so integral an aspect of one's identity, [that] it is not appropriate to require a person to repudiate or change [it] in order to avoid discriminatory treatment"); see also Tweedy, supra note 170, at 1513 & n.229; cf Susan R. Schmeiser, Changing the Immutable, 41 CONN. L. REV. 1495, 1495, 1412-19 (2009) (discussing the "new immutability").
(441.) Cf Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "'Don't Ask, Don't Tell," 108 YALE L.J. 485,496-99 (1998) (locating visibility as part of the same prong containing immutability, but also as pervading discussions of the other factors in some opinions).
(442.) See, e.g., Balkin, supra note 74, at 2340; William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2064 & n.3, 2065 (2002).
(443.) The distinction between attitudes (feelings) and stereotypes (thoughts and beliefs) is foundational in social psychology. See, e.g., Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition. Attitudes, Self-Esteem, and Stereotypes, 102 PSYCHOL. REV. 4, 6 (1995).
(444.) Cf, e.g., Robyn K. Mallett et al., Seeing Through Their Eyes: When Majority Group Members Take Collective Action on Behalf of an Outgroup, 11 GROUP PROCESSES & INTERGROUP REL. 451,452, 456-58 (2008) (discussing circumstances that trigger public action against discriminatory practices).
(445.) See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
(446.) Cf Mallett et al., supra note 444, at 457-58 (reporting the finding that "perspective taking" predicted collective action on behalf of outgroups).
(447.) See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring); Washington v. Davis, 426 U.S. 229, 239 (1976).
(448.) See, e.g., Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 319-27 (1987); Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1, 39 (2000).
(449.) One might think here of the Americans with Disabilities Act, which was arguably passed in response to a combination of indirect and direct burdens. See, e.g., Garrett, 531 U.S. at 377-80 (Breyer, J., dissenting); see also id. at 374-77 (Kennedy, J., concurring).
(450.) It is interesting to note the slippage between the social group that meets the criteria-such as women or African Americans--and the form the protection often takes--which is protection for the axis of identity, like sex or race, for everyone. This transformation, from the target group for protection to axis-based protection for everyone, is fascinating and has been the subject of thoughtful attention. See, e.g., MK, Questioning the Messaging: How Journalists & Equality Advocates (Unwittingly) Lend Credence to Anti-LGBT Talking Points, LGBT YOUTH ALLIES (Jun 19, 2013, 5:55 PM), http://www.youthallies.com/ questioning-messaging-anti-discrimination-laws. Under my approach, this slippage between group and axis is worth noting as inconsistent across groups and not specifically predicted by the criteria.
(451.) See, e.g., FORD, supra note 430, at 159 (2008); DEBORAH HELLMAN, WHEN Is DISCRIMINATION WRONG 2, 7 (2008); Post, supra note 448, at 2-8. My discussion in this Subpart of the Article was partially inspired by exchanges with George Rutherglen. See also George Rutherglen, Concrete or Abstract Conceptions of Discrimination? 24-28 (Univ. of Va. Sch. of Law Pub. Law & Legal Theory Research Paper Series, Paper No. 2012-58, 2012), available at http://papers.ssm.com/sol3/papers-cfm?abstract_id=2148435.
(452.) See, e.g., Daniel S. Hamermesh & Jeff E. Biddle, Beauty and the Labor Market, 84 AM. ECON. REV. 1174, 1186 (1994) (finding "a 7-9-percent penalty for being in the lowest 9 percent of looks among all workers, and a 5-percent premium for being in the top 33 percent"); Post, supra note 448, at 7 (quoting a source relying on the Hamermesh & Biddle study for the 10 percent figure). For a discussion of various data in this area, see DEBORAH L. RHODE, THE BEAUTY BIAS: THE INJUSTICE OF APPEARANCE IN LIFE AND LAW 26-28 (2010).
(453.) See, e.g., RHODE, supra note 452, at 20; Note, Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance, 100 HARV. L. REV. 2035, 2036 (1987); see also Post, supra note 448, at 2, 8 (discussing the argument that the logic of U.S. antidiscrimination law leads to "anti-lookism" protections).
(454.) Protections of various aspects of appearance, typically with limited remedies, can be found in one U.S. state, see MICH. COMP. LAWS [section] 37.2202(1)(a) (2013), and seven U.S. municipalities, see SANTA CRUZ, CAL., MEN. CODE [section] 9.83.020(13) (2013); S.F., CAL., ADMIN. CODE [section] 12A.1 (2013); D.C. CODE [section] 2-1401.01 (2013); URBANA, ILL., CODE OF ORDINANCES [section] 12-37 (2013); COUNTY OF HOWARD, MD., CODE OF ORDINANCES [section] 12.200 (2013); BINGHAMTON, N.Y., CODE OF ORDINANCES [section] 45-2 (2013); MADISON, WIS., CODE OF ORDINANCES [section] 39.03(1) (2013).
(455.) There is a small, and very interesting, fat rights movement, but it has not achieved a significant public presence. See NAT'L ASS'N ADVANCE FAT ACCEPTANCE, http://www.naafaonline.com (last visited Jan. 29, 2014); see also ANNA KIRKLAND, FAT RIGHTS: DILEMMAS OF DIFFERENCE AND PERSONHOOD 31-32 (2008).
(456.) On the extent to which weight is a mix of biology and choice, but is thought to be easy to control, see, for example, RHODE, supra note 452, at 42.
(457.) See, e.g., id. at 119, 229 n.10 (discussing religion-based appearance discrimination cases).
(458.) This is what makes the statements by Susan Sontag and Oscar Wilde to the contrary famous; by stating that "our manner of appearing is our manner of being," or that it is "shallow ... not [to] judge by appearances," these provocateurs flout common wisdom. Post, supra note 448, at 2 (internal quotation mark omitted).
(459.) See RHODE, supra note 452, at 41-42.
(460.) See, e.g., RHODE, supra note 452, at 117; Note, supra note 453, at 2035.
(461.) See SUSAN M. SCHWEIK, THE UGLY LAWS: DISABILITY IN PUBLIC 7-9 (2009) (explaining the coining of the term "ugly laws" and asserting that "[u]nsightly beggar ordinance" would be a "more accurate name historically" (internal quotation marks omitted)).
(462.) See supra note 454 and accompanying text.
(463.) See supra Part III.E.2.
(464.) And to a lesser degree, bisexuals, trans, and intersex people. See Noa Ben-Asher, The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties, 29 HARV. J.L. & GENDER 51, 51-52 (2006); Yoshino, supra note 143, at 353.
(465.) See, e.g., About GLAAD, GLAAD, http://www.glaad.org/about (last visited Jan. 29, 2014); About Us, LAMBDA LEGAL, http://www.lambdalegal.org/about-us (last visited Jan. 29, 2014).
(466.) But see Robinson, supra note 323, at 1335 (arguing from existing work that there are visible differences between gays and straights).
(467.) See, e.g., Bowers v. Hardwick, 478 U.S. 186, 190-94 (1986) (citing the legal restrictions and their history), overruled by Lawrence v. Texas, 539 U.S. 558 (2003); Yoshino, supra note 274, at 784-811 (cataloguing legal and cultural efforts to "convert" homosexuals).
(468.) See, e.g., Yoshino, supra note 274, at 798-803 (documenting the decline of conversion demands placed on gay identity, importantly signaled by events such as the American Psychiatric Association's abandonment of psychiatric diagnoses of homosexuality).
(469.) See, e.g., Brian A. Nosek et al., Pervasiveness and Correlates of Implicit Attitudes and Stereotypes, 18 EUR. REV. SOC. PSYCHOL. 36, 54 (2007); see also Katherine B. Coffman et al., The Size of the LGBT Population and the Magnitude of Anti-gay Sentiment Are Substantially Underestimated 13, 15 (Nat'l Bureau of Econ. Research, Working Paper No. 19508, 2013), available at http://www.nber.org/papers/w19508 (suggesting that typical methods of studying anti-LGBT sentiment may underestimate its extent).
(470.) For example, there are stereotypes of "gender inversion" for men and women, as well as predatory assumptions about gay men. See, e.g., Robinson, supra note 323, at 1335-43.
(471.) Gay people can in principle get married, since the marriage restrictions are sex-based, not sexual-orientation based, but as many commentators have noted, this distinction is somewhat artificial in context.
(472.) See Employment Non-Discrimination Act, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/laws-and-legislation/federal-legislation/employment-non-discriminationact (last updated Nov. 7, 2013).
(473.) See supra note 374 and accompanying text; see also Local Employment NonDiscrimination Ordinances, MOVEMENT ADVANCEMENT PROJECT, http://www.lgbtmap.org/ equality-maps/non_discrimination_ordinances (last updated Dec. 20, 2013).
(474.) See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693 (2013); Perry v. Schwarzenegger, 704 F. Supp. 2d 921,996, 1003 (N.D. Cal. 2010), aff'dsub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded on other grounds sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); In re Marriage Cases, 183 P.3d 384, 441-42 (Cal. 2008); see also Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Romer v. Evans, 517 U.S. 620, 627, 631-34 (1996) (applying the de facto heightened form of "rational basis" scrutiny).
(475.) (A)SEXUAL, supra note 4.
(476.) See supra Part II.A. 1 .b.
(477.) See supra Part I.B.
(478.) See supra note 66 and accompanying text (discussing Swankivy's experience).
(479.) See supra notes 381-86 and accompanying text.
(480.) See supra Part III.B.
(481.) As noted earlier, the link with autism could form the basis for one stereotype about difficulty with human interaction. See supra notes 202-03.
(482.) Sexual orientation statutes nearly all define precisely which subcategories fall within them: namely, homosexuality, heterosexuality, and bisexuality (and, uniquely among states, asexuality in New York). See supra note 375 and accompanying text.
(483.) See supra note 473 and accompanying text.
(484.) The municipalities are Hyattsville, Md., and San Antonio, Tex. See supra note 351. In addition, "asexuality" was proposed for inclusion in one other city's ordinance protecting sexual orientation--a fairness law that passed in Frankfort, Ky., in August 2013though the proposal to add asexuality was apparently made by an opponent and failed to garner support. Greg Kocher, Frankfort Passes Fairness Ordinance with 3-2 Vote, LEXINGTON HERALD-LEADER (Ky.) (Aug. 29, 2013), http://www.kentucky.com/ 2013/08/29/2793289/frankfort-passes-fairness-ordinance.html; see also Katie Brandenburg, Group Eyes Fairness Ordinance, PARK CITY DAILY NEWS (Ky.) (Dec. 22, 2013, 12:54 AM), http://www.bgdailynews.com/news/local/group-eyes-faimess-ordinance/article_f4d222ceb5d1-59a1-9 1d1-96dd63e56f19.html ("[A critic] also had some issues with the way the ordinance was written.... For example, asexual people aren't protected under Frankfort's ordinance, which indicates that it doesn't give equal protection to everyone.").
(485.) See supra Part II.C. 1 ; see also supra Figure 1.
(486.) See supra Part II.C.4.
(487.) See, e.g., Young v. Sw. Sav. & Loan Ass'n, 509 F.2d 140, 144-45 (Sth Cir. 1975); EEOC Compl. Man. (BNA) [section] 628.51 (July 22, 2008). Religious discrimination claims under the Constitution involve unique protections and present more complicated questions for atheism than does Title VII, but the statutory analogy between atheism and asexuality, while imperfect, offers a neat parallel for purposes of seeing how standing outside a category could form the basis of protection under it. Cf Kent Greenawalt, Title VII and Religious Liberty, 33 LOY. U. CHL L.J. 1, 27 (2001) ("Whatever may be the status of atheism under the Free Exercise Clause, atheists can make claims under Title VII. Not only can an atheist suffer outright discrimination because of his religious belief that no God exists, an atheist may need accommodation.").
(488.) See AVEN Memo, supra note 59, at 3 (arguing that "[o]ver the next decade, asexuality will receive a historically unprecedented level of visibility" as the traffic on the AVEN website, asexuality.org, continues to increase, as do media representations of and interest in asexuals, and as this relatively young movement is aging into a significant presence in the workforce); Miller, supra note 51, at 1.
(489.) Two new local ordinances in the United States in 2013, and an asexuality-inclusive legal interpretation in the United Kingdom in 2012, might be the beginnings of a broader trend, though it is too soon to tell. See supra note 351.
(490.) ADAM PHILLIPS, On Being Bored, in ON KISSING, TICKLING, AND BEING BORED: PSYCHOANALYTIC ESSAYS ON THE UNEXAMINED LIFE 68, 69 (1994); see also FOUCAULT, The End of the Monarchy of Sex, supra note 249, at 219 ("Look at what is happening as far as children are concerned. Some say: children's life is their sex life. From the bottle to puberty, that's all it is. Behind the desire to learn to read or the taste for comic strips, there is still and will always be sexuality. Well, are you sure that this type of discourse is actually liberating? Are you sure that it doesn't lock children into a sort of sexual insularity? And what after all if they just couldn't care less? If the liberty of not being an adult consisted exactly in not being enslaved to the law of sexuality, to its principles, to its commonplace, would it be so boring after all?").
(491.) PHILLIPS, supra note 490, at 76.
Elizabeth F. Emens, Isidor and Seville Sulzbacher Professor of Law, Columbia Law School. For helpful conversations and comments on earlier drafts, I thank Susan Appleton, Noa Ben-Asher, Vera Bergelson, Christina Bohannan, Samuel Bray, Jessica Bulman-Pozen, Mark Carrigan, Mary Anne Case, Luis Chiesa, Jessica Clarke, Bridget Crawford, Ariela Dubler, Richard Emens, Katie Eyer, Lindsay Farmer, Robert Ferguson, Peter Fraenkel, Katherine Franke, Cary Franklin, Suzanne Goldberg, Sally Goldfarb, Timothy Gray, Alison Gurr, Bernard Harcourt, Jill Hasday, Deborah Hellman, Adam Hickey, Bert Huang, Clare Huntington, Alan Hyde, David Jay, Margo Kaplan, Suzanne Kim, Sarah Lawsky, James Liebman, Kimberly Mutcherson, Elizabeth Povinelli, David Pozen, Anthea Roberts, Russell Robinson, Cliff Rosky, George Rutherglen, Elizabeth Scott, Rachel Smith, Geoffrey Stone, Lior Strahilevitz, Susan Sturm, Cass Sunstein, Emily Gold Waldman, and participants in the Association of Law, Culture, and Humanities Annual Conference at the University of London, Columbia Law School (CLS) Faculty Workshop, CLS Juniors Workshop, CLS Legal Scholarship Seminar, Columbia Law Women's Association, Columbia University Institute for Research on Women and Gender Feminist Interventions Lecture Series, Emerging Family Law Scholars Conference, Fordham Legal Theory Workshop, Iowa Law School Faculty Workshop, Pace Law School Faculty Workshop, Rutgers School of Law-Camden Faculty Workshop, Rutgers School of Law-Newark Faculty Workshop, University of Miami School of Law Legal Theory Workshop, University of Minnesota Law School Faculty Workshop, University of Toronto Law School Legal Theory Workshop, and my employment discrimination law class. For excellent research assistance, I thank Anne Coxe, Justine di Giovanni, Timothy Gray, Johanna Hudgens, Maureen Kellett, Rachel Jones, Laura Mergenthal, Leigh Anne St. Charles-O'Brien, and Bahrad Sokhansanj.
TABLE 1 A Descriptive Model: Eight Criteria That Contribute to Antidiscrimination Protection Individual 1) Identity beyond the individual's control or thought too deeply rooted to ask people to alter 2) Identity characterized by a visible trait or distinct behavior Political 3) Identity associated with a salient social group 4) Identity associated with a widely known social movement Relational 5) Negative public attitudes toward the group 6) Limiting or demeaning stereotypes attached to the group Legal 7) History of explicit or direct legal burdens 8) History of implicit or indirect legal burdens
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|Title Annotation:||asexuality as means to broaden antidiscrimination law framework; III. Asexual Law and Our Sexual Law through Conclusion, with footnotes, p. 345-386|
|Author:||Emens, Elizabeth F.|
|Publication:||Stanford Law Review|
|Date:||Feb 1, 2014|
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