Musings On The Law

I recently did a cursory survey of anti-discrimination laws in the US and whether or not they cover asexual and aromantic people. Only one state (New York) explicitly mentioned asexuality. No states explicitly mentioned aromanticism. Minnesota, New Jersey, Pennsylvania, and Puerto Rico have wording that mentions “affectional”, “emotional”, or “romantic” attraction. Massachusetts, New Jersey, Pennsylvania, and Puerto Rico have wording that is vague, unclear, or has technicalities that may support an interpretation that protects asexual and/or aromantic people. Many states have anti-discrimination laws that protect people on the basis of sexual orientation, but then go on to narrowly define sexual orientation in a manner that excludes asexuality. Very few states recognize the concept of romantic orientation, and most of those have definitions that may exclude aromantic people.

It is clear from this survey that there is a lot of work to be done.

It is also clear that laws are very freaking complicated… You have federal law, state law, county law, municipal law, then you have executive orders and court rulings and commission interpretations, all with varying degrees of applicability and supremacy.

This post is meant to spur discussion and possibly action, but it should not be taken as The One True Way™ to get there. I’m not a lawyer, I haven’t even particularly researched this in any great depth beyond collecting state laws and skimming parts of the Compulsory Sexuality paper by Elizabeth Emens (Which itself is sort of strange in a couple of sections, but I won’t get into that…). This post is just a collection of thoughts I had while looking at this, and they may not be particularly good thoughts.

This post will assume the following premise as given and proceed from there: Asexuality, aromanticism, and related identities are worthy of protection under the law. If you do not agree with that premise, go away, this post isn’t for you. I’m not going to spend any time justifying that premise here.

Where Asexuality And Aromanticism Are Relevant In Law

There are a couple of different areas that came up during my review where asexuality and aromanticism are relevant to legal proceedings and protections. The most obvious are anti-discrimination statutes: Employment, housing, education, denial of services, etc. Then there are marriage laws, including tax laws and laws regarding consummation which may still be on the books. Tangentially related to that are other “family” laws like inheritance, hospital visitation, etc. Hate crime/bias crime enhancements are another area where asexuality and aromanticism would be relevant. We probably all could have benefitted from aro and ace inclusion in sex ed programs. I know some people who have been subjected to what they would consider to be conversion therapy. And I’m certain that there will be other areas I’ve missed that will be noted in the comments.

In some of these cases, it’s not specifically being asexual or aromantic which is relevant, but rather the singleness, childlessness, or non-traditional relationship forms that apply to many asexual or aromantic people which become relevant. In those cases, protections for marital/family status become important, as well.

In this post, I’m mostly going to talk about the anti-discrimination laws, although it would undoubtedly be worthwhile to examine all of these areas with an aromantic or asexual eye.

Lay Of The Law Of The Land

I can separate the current state of legal protections into three primary classes:

  • “Friendly”: These are the states which have protections against discrimination on the basis of sexual orientation specifically, but don’t necessarily cover asexuality or aromanticism, whether explicitly or implicitly. About half of the states fall into this bucket.
  • “Indifferent”: These are states which do not have specific sexual orientation protections. In these states, protection on the basis of sexual orientation may be granted through a technicality (Such as the interpretation of “on the basis of sex” to include sexual orientation) or through interpretive guidance from a human rights commission or something similar, or if those areas are silent, protections would come from the federal level. About half of the states fall into this bucket. At a federal level, protection is currently granted to the entire country on the basis of sexual orientation due to the interpretation of the meaning of “sex”, although that the details particular interpretation may not protect asexuality.
  • “Hostile”: These are states which have language to deliberately exclude sexual orientation from protection. These states include North Dakota, Oklahoma, Texas, and Wyoming. While current interpretation of federal law would provide protection in those states, this codified hostility is still noteworthy.

Ironically, some of the “Indifferent” (typically more conservative) states offer greater protection for asexuality (although typically not aromanticism) than some of the “Friendly” (typically more liberal) states. This is because the “indifferent” states will occasionally mention “sexual orientation” as part of their hate crime statutes or other laws, but don’t give a definition, whereas many of the “friendly” states have a definition for sexual orientation which excludes asexuality in some way.

What about Romantic Orientation?

Most antidiscrimination laws completely ignore any concept of romantic orientation, sometimes referred to as “affectional” or “emotional”. In the case of New Jersey, the laws mention “affectional or sexual orientation”, but then proceed to define that phrase in strict terms of “male or female heterosexuality, homosexuality, or bisexuality”, thus negating the distinction between “affectional” and “sexual”.

Obviously, overlooking romantic orientation is concerning for aromantic people, as aromanticism would not be a protected characteristic. But, going deeper into the potential Dark Future Of Increased Awareness, as the concept of romantic orientation becomes more well known, one could envision attempts to get around existing protections by claiming something like “I didn’t fire him because he’s sexually attracted to men, I fired him because he’s romantically attracted to men. There’s nothing that says I can’t do that.” Now, clearly that example seems contrived, but don’t underestimate the ability of horrible people to do horrible things and try to get away with it. So language that’s inclusive of romantic/affectional orientation isn’t just of value to aromantic people.

Defining Sexual Orientation

One thing that I noticed in my survey is that many states define sexual orientation in a very specific way that ends up excluding asexuality (along with pansexuality and others). Most states which have a definition use language that boils down to “heterosexuality, homosexuality or bisexuality”. New York adds asexuality to that list, while Arizona leaves out bisexuality. Some states have an odd conflation which buckets gender identity under sexual orientation. (Presumably this is for convenience: If you change the legal definition, you only have to change one part of the law. But it’s still strange.) Some of these definitions reference “actual or perceived” status. Some definitions are explicitly ciscentric and end up being exclusionary on that front. Some definitions are worded to be general, but then presume an “attachment” or “attraction” that may not be there for ace or aro people, therefore they may not apply.

Clearly, defining sexual orientation isn’t easy…

But is there even a need to define sexual orientation? As I mentioned in an earlier section, some states which don’t define sexual orientation end up having more protections for asexual people than states with broad laws and a narrow definition. Can we just leave the definition out entirely and rely on a common understanding of the phrase?

Well, maybe, but… In Compulsory Sexuality, there’s a bit of a behind the scenes discussion of this topic from the lawmaker responsible for New York’s state law. He remarked that a definition was necessary to defend against “slippery slope” objections. In other words, without laying out clearly what “sexual orientation” meant, other lawmakers would raise frivolous objections about the law. For instance, someone could raise the specter of some yahoo filing a discrimination case claiming they were illegally fired because they’re sexually attracted to dogs, which could lead to public outcry over the legalization of bestiality. Surely, that’s political nonsense and such a case would be laughed out of court. But imagine a different case, where sexual orientation isn’t well defined, and an asexual person has to prove that asexuality is a sexual orientation in court. A spelled out, inclusive definition would be useful in that case.

So, if a definition of sexual orientation would be useful, what should it look like? Here are a few thoughts I have:

  • Not a list. The solution is not to just add “asexuality” to the Big Three. That would be great for us, but not great for those who come after us. For instance, pansexual people would still be excluded from most definitions. A specific list would just lead to the same kinds of gatekeeping and club membership debates that exist around the LGBTQIAA2P++* acronym AND it would get just as long and unwieldy.
  • Does not conflate. Presumably for convenience, some states have jammed gender identity in their definition for sexual orientation. That’s inaccurate and out of step with reality. Sexual orientation, gender identity, and romantic/affectional/emotional orientation should be first class characteristics, not shoehorned afterthoughts or inferred from the context.
  • “Or lack thereof”. Some states give a general definition of sexual orientation which does not give a hard and fast list of club members, but instead defines it in terms of attraction or attachment. Unfortunately, they mostly appear to require that attachment to be present. Any definition along these lines would need to recognize the lack of such attraction or attachment. New York City’s statute is an example of this.
  • Not ciscentric/binary. Some states explicitly reference things like “male or female”, etc. There’s really no need for that, when something like “without regard for gender (or lack thereof)” would work in most cases.
  • Inclusive, with an eye on the future. We don’t know what sexuality will look like in the future. New terms will pop up, old terms will get new meanings. I don’t think that any of these states deliberately said “No, we don’t like those asexuals”, I just think we weren’t on their radar at all. Any definition should try to avoid those sorts of traps going forward. I like Puerto Rico’s statement that the definition should be broadly interpreted. That’ll help cover the unintentional holes in the wording and help to make it future proof.
  • “Actual or perceived”. I like this clause, as it can prevent discrimination cases from being dismissed by saying that unlawful conduct wasn’t technically unlawful, as the person wasn’t actually whatever protected class the perpetrator thought they were.
  • Protects actions as well as feelings. There’s a common refrain, particularly in ace circles, that “action is not attraction”, that people can engage in behaviors that don’t always align with their orientation. Anti-discrimination laws should protect that. This would be necessary in the Dark Future Of Increased Awareness, where one of those “It’s alright if you’re gay as long as you don’t act on it” people tries to use “action is not attraction” as a weapon.
  • Default for state law. The states are split between having a central, single definition, and having the definition scattered across multiple acts or statutes or chapters. Having a default definition means that the definition would apply anywhere a phrase is used. Otherwise it’s possible a term might not be defined or the definition might not get updated, and that can lead to confusion and technicalities.

I think a definition of romantic orientation would have many of the same characteristics. On that front, I think I prefer terminology like “emotional” or “affectional”, as that would likely also cover people and relationships for whom “romantic” doesn’t really apply.

Allies In The Cause

We are not alone.

I’ve already mentioned that in some states, the definition of “sexual attraction” was expanded to include gender identity. Sure, that might have been convenient for lawmakers, but that doesn’t make it right. Gender identity should be its own, separate protected class. (Personally, I worry about whether or not an definition that’s out of step with the conventional meaning of a phrase would be grounds for getting a law thrown out in court.) And in some cases, gender identity isn’t a protected class at all. Trans groups in those states are probably fighting to change that.

Many states use a definition that includes bisexuality, but not pansexuality. You can dive into a semantic argument over whether a pansexual person could be legally considered as bisexual for the purposes of the law, but the point is that those sorts of semantic arguments shouldn’t even be a question. Pan groups in those states are probably fighting to change that.

Other states don’t have any protections for sexual orientation or gender identity at all. Queer rights groups across the rainbow are probably fighting to change that.

Intersex people are overlooked by almost every state anti-discrimination law. Maybe they’d fall into “medical condition” or “gender identity” or even “disability” protections, but they shouldn’t have to figure out which demeaning or inaccurate bucket they have to fall into for protection. Intersex groups are probably fighting to change that.

The point is, other people are trying to change these laws, too. So we can partner with them get these changes made at the same time we’re pushing for an improved definition of sexual orientation and inclusion of romantic/affectional orientation.

By joining our voices, we can all be heard.

Where Do We Go From Here?

Ideally, we can get laws passed everywhere which are inclusive of aromanticism and asexuality, and which consider sexual orientation, romantic/emotional/affectional orientation, and gender identity as separate protected classes. But we’re not going to get there tomorrow…

Your first step would be to dive into the laws in your area to better understand what’s covered. Don’t rely on my analysis, after all, what the hell do I know? I’m not a lawyer or legal scholar, I just cranked up a synthpop playlist and ran a bunch of searches one afternoon.

From there, I think we can discuss more specifically what we’d like to see. People would be more likely to listen if we go to them with suggestions or even some boilerplate language, rather than just a demand to include aces and aros. (One thing that was clear in the survey is that lawmakers love Ctrl+C/Ctrl+V…)

After that, I think the next step would be reaching out to local activist groups and legislators and get a sense of what’s already in the pipeline. For those “friendly” states noted above, there may not be much going on, because there may be a sense that the battle has already been won. But in those “indifferent” and “hostile” states, I can almost guarantee that there’s a state legislator or two out there who submits an anti-discrimination bill every session. Whatever is happening, it would be worth getting in touch with the people doing it and getting involved in the process to whatever extent possible, and try to piggyback our changes on theirs.

(I should also point out here that while it might seem as though groups like AO, TAAAP, or AVEN might be well positioned to take up this kind of charge, it’s possible that none of them really can. I believe those groups are currently or are planning to become registered non-profits of a type that would prohibit substantial lobbying of this type.)

We have a lot of work to do. Time to get busy.

5 thoughts on “Musings On The Law

  1. As added note to your article, which was great, having gender as protected class in the law isn’t enough. In practice, this covered mostly cis male/female inequalities. In Holland, the equal treatment law was recently changed to explicitly include transgender and intersex because that was actually necessary to cover discrimination of folks notof cis-male and cis-female.

    • Absolutely.

      A lot of states do have specific protections for gender identity or expression which is separate from protections for sex/gender. For instance, in Washington, there is a definition that says “As used in this definition, ‘gender expression or identity’ means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.” This definition should protect trans/non-binary/agender/etc. people. However, for some reason, they’ve jammed this clause inside the definition for “sexual orientation”. Presumably they did that for convenience, but I don’t understand why they put it under the definition for “sexual orientation” and not “sex”. Regardless, I definitely think it needs to be specifically called out and not conflated with something else. In some other states, that’s already the case.

      I don’t know if any states currently provide specific protection for intersex people. I wasn’t really looking for that, but I’m fairly certain I saw it mentioned at least once along the way. I can’t remember if that was an explicit statute or if that was in some Human Rights Commission interpretation guidance somewhere, though. (Along those lines, I’d also like to see a general ban on unnecessary, involuntary cosmetic surgeries on the genitals of infants, especially when it comes with a side helping of years and years of lies.)

  2. I work in (U.S.) immigration law and have helped a decent number of people apply for status through their spouse, so that’s where my mind immediately went. An important component of the spouse petition is “marital bona fides”, documents showing that the couple spend time together, have combined their finances, and ideally have had a couple of kids, as a means of proving the legitimacy of their marriage. I don’t know as much about what goes down during the subsequent interview, but even if the officer probably isn’t probing into the applicants’ sex life, there’s certainly value in demonstrating that your marriage is built upon mutual attraction and affection. I can imagine a less traditional partnership, for instance one between married aromantic QPPs, being flagged as fraudulent for failing to meet that standard, even if the couple’s commitment to each other and to a shared life is indisputable.

    Being married just gives you more options across the board as an intending immigrant: certain waiver applications require you to demonstrate hardship to a qualifying relative in the (hypothetical or actual) case of your removal from the country, and unless you’re fortunate enough to have a U.S. citizen parent, that relative must be your spouse. As a green card holder, you can apply for naturalization after three years instead of five if you’re married to a U.S. citizen. And when the approval or denial of any application comes down to an exercise of discretion, family ties count for a lot. It’s interesting how these systems actually encourage a pragmatic, even transactional view of marriage—if you’re already in a relationship, why not take that extra step and reap the benefits?—while casting suspicion on any partnership that displays too much pragmatism and too little sentimentality.

  3. This comment thread from 2014 talks about some possible issues with immigration-by-marriage from an ace standpoint; namely, immigration officials asking personal questions like “what color is your spouse’s underwear?” while during interviews, while reviewing proofs of existing relationship.

    It’s interesting how these systems actually encourage a pragmatic, even transactional view of marriage—if you’re already in a relationship, why not take that extra step and reap the benefits?—while casting suspicion on any partnership that displays too much pragmatism and too little sentimentality.

    May i just say hhhhhhHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH-

    So yeah, immigration legislation and processes are likely an ace & aro issue.

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