This is a guest post by Captain Heartless, who recently graduated law school and is currently waiting to find out if he passed the bar examination in his home state.
[Content: discrimination, brief mention of corrective rape]
Recently I speculated that one way a movement could be categorized or described is the degree to which it focuses on legal issues. When asked about problems that the asexual community faces, as activists we often seem to feel obligated to focus on legal issues. In doing so, we inevitably end up relying on the Emens paper, and talk about consummation laws with some offhand mentions of employment discrimination. I believe this tendency to try and find legal issues is unnecessary, and may even be harmful.
For example, I find it hard to imagine a court enforcing consummation laws in the present day. Such laws are indicative of the kind of social norms asexuals face, but I’m skeptical that a court would actually inquire in to whether or not a married couple had sex. Instead, they are one of the potential legal problems asexuals might face, but until we hear of it actually happening we should be cautious about what we say. The state of asexual legal scholarship at this moment is so lacking that I don’t think we can do any more than speculate on legal problems asexuals face, and see if anyone chimes in and says “that happened to me”. At this point, we don’t have any reliable means of gathering stories and experiences of the problems asexuals actually face, and we won’t hear about anything unless it happens to negatively affect a particularly vocal blogger or a close friend of one. Whenever any of the legal issues come up in arguments outside the community*, I worry that we may be bringing up problems that turn out to be non-issues, at the expense of emphasizing the many issues we actually know asexuals face.
I suspect we do this because we are modeling ourselves too much off of the (admittedly successful) gay rights movement. We need to stop and think about this- if someone asks about political issues, or even specifically legal issues- we shouldn’t accept the (usually) implicit assumption that a movement doesn’t have “serious” issues unless they can point to a law that oppresses them. And bringing up something that may turn out to be a non-issue (like consummation laws) might cause people to think the other issues are also non-issues. We can easily bring up obvious issues asexuals face- like corrective rape, poor medical services, bullying, harmful social norms and expectations, and so on. We don’t need to cite a law to “prove” that we are really discriminated against; we have the day to day lives of asexuals for that. So until we get some kind of organization or framework for dealing with asexual legal issues, I want to suggest that in media appearances we all resist the temptation to try and find some court battle we can litigate, and instead just bring up the obvious and pressing social issues. We don’t have to be a legal movement, and if we want to develop a legal arm then we should do it carefully and deliberately- and push the social changes first, while the legal remedies play catch up.
In particular, if we want to pursue and push the legal issues, here is what I would do first:
- Set up an asexual legal referral clinic, probably as an attachment to an ace nonprofit. Basically, get some kind of phone number or email address for people to call if they are asexual and need to be referred to a lawyer near them. This way we can not only help asexuals in legal trouble find lawyers, but we can also start gathering data about what legal needs the asexual community actually has. I doubt it would be get many calls, even if we publicize it well, but it would still be a useful tool.
- Encourage, or more likely perform, academic legal scholarship on asexuality. This would be easier if we had some data or stories, but generally I’d expect to see issues in areas where omission is a problem (e.g., employment discrimination), where the law could provide a remedy (e.g., possible claims against medical professionals for corrective therapy), and where the law is affected by social expectations (e.g., anything involving discretion or a reasonableness standard). However, without data about what problems we face this will still always be speculation and theory. And we will have to find law reviews willing to publish articles about asexuality.
- Probably related to the other two issues, but try to build a network or listserv of asexual lawyers (or future lawyers!), and potentially lawyers interested in helping with asexual issues.
*Note that I’m mostly concerned about the face we put on for outsiders here. Within the community, I’d love to see what people think may be problems- even if it really is just wild speculation- since it’s likely many of us may face legal problems and just don’t conceptualize of them as legal problems yet