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Compulsory Sexuality COMPULSORY SEXUALITY Elizabeth F. Emens* Asexuality is an emerging identity category that challenges the common assumption that everyone is defined by some type of sexual attraction. Asexuals— those who report feeling no sexual attraction to others—constitute one percent of the population, according to one prominent study. In recent years, some individ- uals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classifi- cation under the antidiscrimination law of one state and several localities, but le- gal scholarship has thus far neglected the subject. This Article introduces asexuality to the legal literature as a category of analysis, an object of empirical study, and a phenomenon of medical science. It then offers a close examination of the growing community of self-identified asexuals. Asexual identity has revealing intersections with the more familiar cat- egories of gender, sexual orientation, and disability, and inspires new models for understanding sexuality. * Isidor and Seville Sulzbacher Professor of Law, Columbia Law School. For help- ful 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 Har- court, 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 Sem- inar, 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. 303 304 STANFORD LAW REVIEW [Vol. 66:303 Thinking about asexuality also sheds light on our legal system. Ours is arguably a sexual law, predicated on the assumption that sex is important. This Article uses asexuality to develop a framework for identifying the ways that law privileges sexuality. Across various fields, these interactions include legal requirements of sexual activity, special carve-outs to shield sexuality from law, legal protections from others’ sexuality, and legal protections for sexual identity. Applying this framework, the Article traces several ways that our sexual law burdens, and occasionally benefits, asexuals. This Article concludes by closely examining asexuality’s prospects for broader inclusion into federal, state, and local antidiscrimination laws. INTRODUCTION....................................................................................................... 305 I. THE EMERGENCE OF ASEXUALITY .................................................................... 307 A. Conceptual: The Fourth Sexual Orientation .............................................. 308 B. Clinical: Hypoactive Sexual Desire Disorder ............................................ 309 C. Empirical: The One Percent Who Wants No One ...................................... 312 D. Self-Identified Aces Find Themselves and Each Other ............................... 314 II. MAPPING ASEXUAL IDENTITY .......................................................................... 316 A. Defining Asexuality as an Identity: Elements and Distinctions .................. 316 1. Principal elements ............................................................................... 316 a. Lack of attraction........................................................................... 316 b. Lack of choice ................................................................................ 318 2. Key distinctions ................................................................................... 319 a. Distinguishing sex with oneself from sex with other people .......... 319 b. Distinguishing romance from sex and friendship .......................... 321 c. Distinguishing aversion and indifference ...................................... 322 3. Identity in relation ............................................................................... 324 4. The problem of diversity ...................................................................... 326 5. Responding to the skepticism .............................................................. 328 B. Intersections: Comparing Identity Categories ........................................... 329 1. Sexuality .............................................................................................. 330 a. Homosexuality ............................................................................... 330 b. Bisexuality ..................................................................................... 330 c. Polyamory ...................................................................................... 332 d. No sexual orientation ..................................................................... 333 2. Gender ................................................................................................. 333 a. No gender ...................................................................................... 333 b. Very gendered ................................................................................ 334 3. Disability ............................................................................................. 337 a. Disability as asexuality .................................................................. 337 b. Asexuality as disability .................................................................. 337 C. Models: Minoritizing, Universalizing, Novel, or Umbrella Category ........ 338 1. Minoritizing ......................................................................................... 338 2. Universalizing ..................................................................................... 339 3. Something new .................................................................................... 340 a. Quantity axis .................................................................................. 340 b. Autoerotic axis ............................................................................... 341 February 2014] COMPULSORY SEXUALITY 305 c. Narcissism axis .............................................................................. 342 d. Romantic-attraction axis ............................................................... 343 e. Orientation-object axis .................................................................. 343 4. An umbrella category of orientation ................................................... 344 III. ASEXUAL LAW AND OUR SEXUAL LAW ........................................................... 345 A. Asexuality’s Interactions with Law: An Analytic Framework .................... 347 B. Legal Requirements of Sexual Activity ....................................................... 350 1. Marriage law ....................................................................................... 350 2. Looking beyond conjugality in marriage and its alternatives ............. 352 C. Legal Exceptions to Shield Sexuality .......................................................... 353 1. The sex work debates .......................................................................... 354 2. Marvin and nonmarital agreements .................................................... 355 D. Legal Protections from Others’ Sexual Expression ................................... 356 1. Sexuality as legal architecture ............................................................ 357 2. Sexual harassment law ........................................................................ 358 E. Legal Protections for Sexual Identity ......................................................... 361 1. Asexuals enter state law: New York’s Sexual Orientation Non-Discrimination Act ...................................................................... 362 2. Antidiscrimination protection: a normative assessment ..................... 366 a. Discrimination against asexuals .................................................... 366 b. The stakes of recognition ............................................................... 369 c. Legal implications: will there be any cases? ................................. 371 d. The case for antidiscrimination protections .................................
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