Compulsory Sexuality

By Emens, Elizabeth F. | Stanford Law Review, February 2014 | Go to article overview

Compulsory Sexuality


Emens, Elizabeth F., Stanford Law Review


III. ASEXUAL LAW AND OUR SEXUAL LAW

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

--Dan Savage (250)

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

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

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

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

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

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

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