Saturday, October 10, 2009

Is asexuality a sexual orientation? Legal definitions

In my several posts, I've largely dealt with issues pertaining to the upcoming DSM-V, which sometimes dealt with asexuality and sometimes didn't. I now return you to your regular asexual programming, continuing a series on whether asexuality is a sexual orientation.

In the start of that series, I made the claim that sexual orientation has at least three separate meanings: sexual orientation as a scientific concept, as a legal concept, and as a social concept. In answering whether asexuality is/should be a sexual orientation, the answer may or may not be the same in each.

I gave a bare outline of the scientific issues here, and I now turn to sexual orientation as a legal concept. For some reason, I had decided to start with this because the issues seemed the most straightforward of the three meanings of sexual orientation I wanted to consider (which I knew to be a foodhardy assumption where the law is concerned.) After I started to write about it, I become less certain and asked a friend in law school for clarification on one point, and then other things came up and the post got delayed about a month.

Is asexuality (legally) a sexual orientation? It depends where you live. In the state of New York, yes. (See the definition of "sexual orientation" in SONDA) Elsewhere, the answer is either no or maybe. (I haven't been able to find anyone else that includes asexuality in the definition of "sexual orientation" in non-discrimination bills, but that's just with Google, which is not be the most thorough analysis of the matter.) The legislation where (the definition of) sexual orientation is most significant is hate-crimes legislation and non-discrimination legislation for employment and/or housing.

(Aside: I'm excluding same-sex marriage/marriage equality because the definition of sexual orientation is sort-of irrelevant for the laws themselves--what matters there is the sex/gender of the people wanting to get married, not their sexual orientation. I use "sex/gender" because the legal gender of transgender and intersex people depends on a number of factors, including the jurisdiction they live in. I say "sort-of irrelevant" because sexual orientation does play an important role in judicial questions--in the US at least--of whether prohibitions against same sex/gender marriage violate either federal or state constitutions, especially with respect to equal protection rights. End aside.)

In places that include sexual orientation in hate crime or non-discrimination legislation, is asexuality a sexual orientation? Because many bills define sexual orientation by giving a list, if asexuality is included in the list, it's a sexual orientation according to that law. If it's not included in the list, the matter is less certain. Because sexual orientation is typically defined by a list, if asexuality is not specifically enumerated, this may mean that, according to that law, asexuality is not a sexual orientation. Or it might mean that that law takes no stance on the issue one way or the other. And unless this question arises in an actual case before some court, there's not going to be an answer. Even then, there would only be an answer for that particular law. (As possible evidence that lack of inclusion does not necessarily mean exclusion, the Illinois Human Rights Act, for example, explicitly excludes one group not enumerated in the definition of sexual orientation.)

My friend in law school has pointed out that in addressing the issue of asexuality, an important source of evidence would be legislative deliberations concerning the law in question. If the issue of asexuality came up and they decided not to include it, then it's probably not a sexual orientation according to that law. If the matter never came up in discussion, the matter is less clear. In that case, perhaps expert testimony arguing that asexuality is a sexual orientation might be relevant.

There does seem to be some evidence that the issue of asexuality has come up. Asexuality was listed as a sexual orientation in a book arguing for sexual orientation as a human right published in the 90's (Sexual Orientation: A human right, and it was included in a New York Statute passed in 2002. It is likely that one of both of these were considered in passing non-discrimination or hatecrimes laws. Also, there is evidence suggesting that asexuality was intentionally excluded from a recently passed Ohio statue banning discrimination in employment or housing on the basis of sexual orientation. There, Sexual orientation is defined as, " actual or perceived, heterosexuality, homosexuality, or bisexuality." In a version of the bill proposed last year (that, I believe, never got voted on) sexual orientation was defined as, "heterosexuality, homosexuality, bisexuality, asexuality, or transgenderism, whether actual or perceived,"

Another question that seems like it might be relevant is that if sexual orientation is defined as "heterosexual, homosexual or bisexual" and asexuals aren't any of these, does that make asexuality a lack of sexual orientation? And if it is a lack of a sexual orientation, then this may imply recognition of it as a sexual orientation category, which may be relevant.

This raises what is perhaps the biggest question regarding whether asexuality is a sexual orientation: Is asexuality a sexual orientation or is it a lack of a sexual orientation? It's a question I've seen raised by a number of different people in a number of different contexts.

In some sense, the question of whether asexuality is legally a sexual orientation may be pointless intellectual exercise. There have been lots of people discriminated against for being LGB and there have been lots of people discriminated against for being T (who may or may not be protected by the same laws.) Even after participating in the asexual community for two years, I've never heard of a single case of an asexual being discriminated against in employment or housing for being asexual. I've never heard of any asexuals who were the victims of hate crimes for being asexual. My suspicion is that if some asexual was the victim of either a hate crime or sexual orientation based discrimination, it's a lot more likely that it would be the result of homophobia than "aphobia." (Many asexuals are suspected of being gay on the basis of their not being straight, and there are a number of asexuals who also identify within one of the LGBT categories.)

Asexuals real issues to deal with: struggling against feelings of alienation, wondering if they're "the only one," facing misunderstanding and disbelief. But outright discrimination doesn't seem to be much of an issue for us, so whether asexuality is legally regarded as a sexual orientation is probably not all that important of an issue. On the other hand, I'm inclined to think that regarding asexuality as a sexual orientation for the purposes of on-the-job ethics training wouldn't be such a bad thing in terms of increasing sensitivity towards asexual employees.


Isaac said...

I don't understand this point in the last lines about sensitivity, but I completely agree want you claimed in the previous paragraph about asexual facing homphobia in the category of "aparent".

Mackenzie said...

Er...I've been asexually harassed on the basis of asexuality. And it wasn't by a homophone. It was by someone within the LGBT community.

Anonymous said...

If you're openly asexual, you can face problems for it. People can constantly bother you, trying to "make" you sexual or that you're broken, coming up with "helpful ideas" about what "caused" it. It's also made some people the target of sexual harassment, even rape, from people who think that all asexual needs is to "know what they're missing".

Anonymous said...

Some critics disagree with the classification of asexuality as a sexual orientation, since asexuals are not interested in sexual behavior. Nice topic! --Meangirl--

Jed said...

The asexual experience is an interesting one, and certainly intriguing from the perspective of our legal ontology.

IMO it seems that male asexuals are perhaps a little more stigmatized, since sexual males are often much more virile than women, so in the view of mainline society, an asexual woman is closer to their expectations.