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Asexuality and the Law


Pramana

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I'm hoping to do some writing on asexuality and the law. In that regard, I'm wondering if anyone has had experiences with the legal system where they felt that they were discriminated against on account of their asexuality, or if anyone perceives that the legal system excludes asexuals through being based on an assumption that everyone is sexual?

At least in North America, it seems that laws which might have an adverse effect on asexual people (such as consummation laws or immigration interviews intended to detect marriage fraud), are either unenforced or affect asexuals so rarely that legal issues are not a major concern for the community (in contrast to the LGBTQ community, where legal issues have to a large extent defined the movement). There's also an argument to be made that family and tax law systematically favour married couples such that asexuals are discriminated against because they're less likely to be married, although many sexual people will also remain single for whatever reason.

So far, I think there's only one law journal article on the topic ("Compulsory Sexuality", Stanford Law Review, Elizabeth F. Emens, 2014). She suggests that we have a "sexual law", and that asexuality provides an outside position from which to critique that law. It's an interesting idea, but it's not obvious where to go from there. Thoughts?

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There was a survey here on AVEN just the other day about how medical care might have been impacted by the patient being asexual. If I see it again, I'll link it to this thread. But you might look at medical law, especially regarding the laws around female reproductive organs. A lot of OBGYNs make the assumption that anyone over a certain age is sexually active, even when they have no evidence to support that assumption, and so it effects their care.

 

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First hand anecdotal: A full pelvic exam/ PAP smear test being done on an adult who is completely sexually inactive. A medical necessity, but also highly uncomfortable at best, especially when there are communication errors.

 

Who knows, there might be a law suit on the topic from other people who've had that experience.

 

As well as who can get their tubes tied, or an oophorectomy (removing the ovaries) and when (the cultural understanding is that you need 2 kids, to be over 30, and have agreement from your partner... I can see how a few of those would interact with asexuality). That leads you to birth control and abortion, which is where you will probably find the most law, but (maybe?) the fewest asexuals.

 

But yeah, I haven't come across asexuality itself in law. But I think you'd find something interesting in medical law. I don't know for sure, but that's my 10 cents, for what it's worth.

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NerotheReaper

As someone who is asexual, works at a law firm and eventually planning to go to law school I have yet to see a case in regards to discrimination against someone because they are asexual. I don't really think this is that common though, the legal system is a lot more complex than most people are aware of. It isn't like the TV shows and things aren't black and white. Perhaps it has happened somewhere at some point, but I didn't experience that in the cases I have helped with. 

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On 2/28/2017 at 6:15 AM, NerotheReaper said:

As someone who is asexual, works at a law firm and eventually planning to go to law school I have yet to see a case in regards to discrimination against someone because they are asexual. I don't really think this is that common though, the legal system is a lot more complex than most people are aware of. It isn't like the TV shows and things aren't black and white. Perhaps it has happened somewhere at some point, but I didn't experience that in the cases I have helped with. 

From the research I've done so far, I would say that for direct legal discrimination against asexuals, cases are more likely to be found in developing countries. For example, the Asexual India website identifies consummation laws as a significant obstacle. But the answer could just be that in North America and Western Europe, at least, asexuality is not a (significant) legal issue.

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32 minutes ago, WaffleGrace said:

But yeah, I haven't come across asexuality itself in law. But I think you'd find something interesting in medical law. I don't know for sure, but that's my 10 cents, for what it's worth.

I'm trying to narrow down a major paper topic (a requirement to finish my law degree). I've come across the pelvic exam issue before, sometimes on asexuality forums (discussing situations where gynaecologists assume everyone is sexual, and so think asexuals are either lying or in need of therapy), but also female friends of mine who are sexual and have expressed concern about doctors who insist on pelvic exams before prescribing birth control. From what I've been able to determine, there isn't any science behind the once a year pelvic exam recommendation.

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41 minutes ago, Pramana said:

I'm trying to narrow down a major paper topic (a requirement to finish my law degree). I've come across the pelvic exam issue before, sometimes on asexuality forums (discussing situations where gynaecologists assume everyone is sexual, and so think asexuals are either lying or in need of therapy), but also female friends of mine who are sexual and have expressed concern about doctors who insist on pelvic exams before prescribing birth control. From what I've been able to determine, there isn't any science behind the once a year pelvic exam recommendation.

How much interdisciplinary research are you allowed? I'm doing a law and anthropology program, so my exposure is a little slanted (much more anthropological focus than actual law training). You seem to have narrowed your paper down to law re: asexuality discrimination in North America, but are having trouble finding case studies. If your paper can pull from broad enough fields, you could use something like legal pluralism to compare law and practice (like how there doesn't seem to be any science behind the once a year pelvic exam recommendation, but it's pretty much standard). It would probably take a lot of research, but you could look through various professions code of ethics for how they're told to deal with aspects of asexuality and compare that to any pertinent laws.

 

Or, if you know the book by Mariana Valverde, "Everyday Law on the Street," you could write an article like that, but focus on asexuality.

 

Good luck!

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On 2/28/2017 at 7:47 AM, WaffleGrace said:

How much interdisciplinary research are you allowed? I'm doing a law and anthropology program, so my exposure is a little slanted (much more anthropological focus than actual law training). You seem to have narrowed your paper down to law re: asexuality discrimination in North America, but are having trouble finding case studies. If your paper can pull from broad enough fields, you could use something like legal pluralism to compare law and practice (like how there doesn't seem to be any science behind the once a year pelvic exam recommendation, but it's pretty much standard). It would probably take a lot of research, but you could look through various professions code of ethics for how they're told to deal with aspects of asexuality and compare that to any pertinent laws.

 

Or, if you know the book by Mariana Valverde, "Everyday Law on the Street," you could write an article like that, but focus on asexuality.

 

Good luck!

I have a fair amount of latitude to do interdisciplinary research, provided it's relevant to the legal issues. I think asexuality as an emerging community in developing countries is a really interesting topic, and it's probably easier to find discriminatory laws in those places, but my paper should relate to Canadian common law (so Canada and other jurisdictions relevant to the development of Canadian common law – U.S.A, U.K., Australia, New Zealand).

Before you mentioned the medical issues, I hadn't really thought of going in that direction, but now I'm thinking about it there might even be some issues surrounding informed consent (if tests are being done more frequently than necessary, with no scientific evidence to support it, and people feel pressured into it – particularly in the context of some asexual people who are really adverse to being touched in those places). And I wasn't even aware of the tubal ligation issue. I think with both, there's potentially a feminist argument to be made about the medical system controlling women's bodies in a way that's different from how men are treated. On the flip side, from what I've read the new science-based recommendation for pelvic exams is every 3-5 years, and I can see why doctors might be reluctant to do tubal ligations when there are highly effective long term birth control alternatives (there'a always a small chance someone might change their mind about having children; non-surgicial techniques reduce the burden on the medical system.

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In legal discrimination, especially in employment discrimination, there's the "but for" argument:  if a black person, for instance, is fired, it  has to be proven that "but for" the fact that that person is black, they would not have been fired.  I'd guess that the same argument would apply in asexual discrimination.  But since asexuality is not visible, and the demonstration of being asexual is pretty complex (if not impossible), it's a lot murkier a situation.   If a gynecologist, for instance, insists that a pelvic exam is required for a prescription of birth control, there's no reason to suspect that the doctor is discriminating against an asexual who doesn't want that pelvic exam.  The doctor may reasonably expect all female patients to have pelvics before birth control is  prescribed, because of  possible  unknown pelvic medical issues that might be affected by medication.  

 

 

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UK employment law, there isn't much. Asexuality isn't expressly a protected characteristic under the Equality Act but it's probably arguable that it could be covered, depending how you interpret the Act.

 

Not sure about medical law, I don't practise it.

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No personal experience, but it might be interesting if you could find a way to scrape court records and see when/where asexuality comes up, if at all - for example, I found these examples sort of by accident: https://nextstepcake.wordpress.com/2016/10/07/asexuality-in-court-records-from-hollingsworth-v-perry/  Unfortunately, I'm not sure if there's any way to systematically do that or if there's even anything else to find.


As far as legal writing on asexuality, there are some brief mentions in "The Epistemic Contract of Bisexual Erasure", Stanford Law Review, Kenji Yoshino, 2000, that might be interesting, but other than that you are correct in that Emens is the only current legal research on asexuality.

Pretty much the entire legal status of asexuality is "well, we aren't sure, so it'll be down to whatever courts say if anyone ever files a claim". But considering the lack of structural support for asexuality, the confusing status of what it even means to be read as asexual, and all that, I don't know if we're likely to have anyone file a claim anytime soon. (I've heard of anecdotal cases where job discrimination was suspected at least indirectly because of asexuality, but in most cases the attitude seems to be "it's not worth filing an official complaint because it would probably not be taken seriously anyway)

 

As far as specific areas of interest, I think immigration law and adoption law are two potential areas of interest. For example, while I don't know about Canada, in the US, green cards for partners are sometimes dependent on investigations to determine whether a relationship is "fake" - would lack of sexual activity put asexual partners at risk of having their partnerships delegitimized? Also, are ace parents looking to adopt likely to be discriminated against as "unsuitable parents" due to their asexuality? (Though again, these are likely going to have to be theoretical considerations, since while there are a few people starting to go through these processes I don't know how much they'd want to share or how hard they are to find).

 

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Considering the ongoing-for-years discussions on AVEN regarding the definition of asexuality and who can be considered to be an asexual, that aspect alone would make it extremely difficult to apply discrimination law to asexuality.  

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Thanks everyone, these are great answers!

My thought from the preliminary research I've done – supported by the responses I've received so far – is that legal discrimination against asexuals in Canada/U.S./U.K (and probably most other developed countries) isn't a significant issue. So far, the literature on the topic has only identified theoretical cases, and these all concern "fringe" intersections between asexuality which will probably only arise very rarely, if at all.

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