Legal analysis: "Polyamory as a Sexual Orientation"
Social Science Research Network
Attorney Ann E. Tweedy, of the California Western School of Law in San Diego, has published an important legal and sociological analysis, Polyamory as a Sexual Orientation, on SSRN, the Social Science Research Network.
The abstract:
Read the whole 73-page paper (June 29, 2010) via the "One-Click Download" link on the abstract page. It's good reading and heavily referenced. I'd say future discussions of this topic are going to begin here.
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Attorney Ann E. Tweedy, of the California Western School of Law in San Diego, has published an important legal and sociological analysis, Polyamory as a Sexual Orientation, on SSRN, the Social Science Research Network.
The abstract:
This article examines the possibility of expanding the definition of “sexual orientation” in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of “sexual orientation” is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered a sexual orientation and the degree of discrimination that polyamorists face. After concluding that expanding current statutory definitions of sexual orientation to include polyamory would be reasonable, the article looks at some of the complications to making such a move, including potential policy implications and the conflicting evidence as to whether polys want specific legal protections.
Read the whole 73-page paper (June 29, 2010) via the "One-Click Download" link on the abstract page. It's good reading and heavily referenced. I'd say future discussions of this topic are going to begin here.
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Labels: legal
18 Comments:
I worry about defining polyamory as an orientation rather than a practise because as far as I have experienced, the people who have defined it that way, usually have pretty shaky reasons or explainations for doing so, not only that but I can't see how you would scientifically examine 'wanting to love more people' as an actual orientation.
What is this need for labels anyway, if you define your sexuality as 'polyamorous' are you being unnatural by being in a mono relationship?
I don't think we need to narrow Polyamory by trying to fit it in to existing sexual discrimination legislation, instead, we need to broaden legislation to include both sexual orientation and sexual practices that are not illegal, which would include Poly relationships and other non-tradtional relationships like BDSM.
I mean, it shouldn't be any more legal for someone to be fired because their employers found out they were Furries or submissives than Poly or gay.
I think I agree with Natja... I'm not sure I'm comfortable with polyamory being defined as an 'orientation.' To me, it's a strategy (or set of strategies) for dealing with differing desires for sexual and emotional exclusivity - I wouldn't say I have a polyamorous orientation, that's far too broad and lumps all the different desires and practices together. At different times I might have a greater or lesser desire for intimacy with multiple people, and I may choose different strategies for dealing wsith those. To me, making this an 'orientation' in the same way as homo-, hetero- or bisexuality are considered orientations takes away the acknowledgement of my own agency and responsibility, and I fear that some people will use its status as orientation to justify doing whatever they want without taking the feelings of others into account, thinking their desires to be fixed and immutable when that really isn't the case, I would argue, for most people, and ultimately abandoning negotiation and personal reflection. I'll work my way through the article, but I'm skeptical.
D
The purpose of labels, and specifically defining polyamory as an orientation, is because the legal system requires labels & definitions to protect discriminated classes.
Legal language is often very different than common-use language, and your personal dislike for being "labeled" is not as important as getting the legal system to recognize discriminated persons and protect them against discrimination. And how they do that is with labels and definitions.
"gay", "asian", "woman", these are also all labels that any individual can use fluidly or that do not necessarily reflect the breadth and complexity of individual use. But for legal requirements, they are protected classes because they are people who have suffered discrimination. The law doesn't have a test for how much your percentage of "asian" is or how "gay" are you - the question is, do you identify as one, and do you fit the general guidelines? If so, you count for protection.
If the law was written to be all inclusive from the beginning, we wouldn't need these classifications. But it wasn't, so we do.
Who is 'we' Joreth? I am poly, I am in a poly relationship but I don't think it is an orientation. This is not about labels, this is about the fact that I think trying to define Poly as a sexual orientation is bogus.
IMHO this goes back to when and why the phrase "sexual orientation" was adopted. Prior to that, people talked about "sexual preference," but then insisted that they didn't choose to be gay, hence the semantic shift to "orientation."
And, frankly, I don't care if it's a choice. I care about whether what you do is inherently harmful, and the harm which comes from trying to restrain or otherwise punish people for not conforming to narrow expectations about sexuality, gender and relationships.
To that end, I have an alternative proposal. Transgender folks have often spoken about "gender identity" in tandem with "sexual orientation." So why not combine it further into "sexual/gender identity"? It doesn't matter whether your identity is chosen or not, only whether being identified as gay, lesbian, bisexual, transgender, intersex, asexual, polyamorous, kinky or whatever deserves punitive social responses such as being fired or evicted, refused service, or harassed and brutalized.
I think this is being viewed very narrowly. This is not about "poly" as much as it is about non monogamy and all of its practices.
Non monogamy IS a sexual orientation. Just as much as the desire to be with one single person is. I feel the intrinsic desire to be with one mate is just as much a form of sexual orientation as the intrinsic desire to not limit yourself. It is probably coded into our genes just like wolves, dolphins, elephants and so on. Just like being gay is.
Poly is the name of the game, but its not the definition for all of us.
This is the brief version of the really long comment I WAS going to write...
My main concern is that the focus in this matter is on *sexual* identity, *sexual* activity, *sexual* orientation. It may be a matter of orientation but if it is I'd more say that it's one of *relationship* orientation.
There are some that cannot ever be happy in a polyamorous relationship, regardless of societal influence; they're wired in a way, one could say, that precludes being comfortable with it. Conversely some people are wired in a way that means they're tremendously unhappy if polyamory isn't an option, leading to all sorts of guilt, depression, and so on.
These two groups may - *may* - be relationship orientations. One could argue it's natural to them to be monogamous or non-monogamous.
Of course there's the third group - which may even be the majority, it's hard to say - who may or may not be capable of monogamy or non-monogamy as defined by the people involved, societal influence, past experiences and so on. These people probably aren't relationally oriented one way or t'other.
And that's the tricky thing, of course. It's not a one-size-fits-all deal.
Y'know, if we didn't consider our love lives each others' business or the business of the state, nobody would have to argue over this stuff AT ALL.
Just a thought.
Alas, we have to live with the world we have while building the world we want. I for one want a world where labels are not used in the pejorative sense, but I cannot deny the reality that people do use labels pejoratively.
The State has always been concerned with people's love lives to some degree or another. I would rather that, in its nosiness, it try to protect my love life than shatter it.
Me? For some people I'm sure poly is a built-in orientation; so many people tell such convincing stories about this. For others, like me, it was a deliberate philosophical choice. I would have naturally been monogamous and conventional if fate had not thrown some remarkable people and experiences my way.
Alan M.
I've written before speculating that poly is a sexual orientation, but I'm not sure either:
http://clarissethorn.wordpress.com/2010/05/11/am-i-evolving-away-from-monogamy/
I've also deconstructed similar ideas around trying to label BDSM a sexual orientation:
http://clarissethorn.wordpress.com/2009/06/03/bdsm-as-a-sexual-orientation-and-complications-of-the-orientation-model/
I understand why some people aren't pleased with the idea of defining polyamory this way. I can especially understand the ones who specifically objected to the idea of it as a /sexual/ orientation, (yes, that does make it sound like it's all about sex when it's not,) and the objection to considering our love lives the business of the state...
But the fact is, sometimes things come out, whether we want them to or not; and having it officially and legally defined as an 'orientation,' would make it easier to set up laws protecting us against discrimination and mistreatment, simply due to who we are and who we love.
...and the reason it's /sexual/ orientation, rather than something else that we could come up with that sounds better to us, is because sexual orientation is already an existing term, and it's easier to stand under an already erected umbrella in a storm, than to try and open up a new one.
Well, i always though that the term sexual orientation was about biological sex of one's, uh, objects of desire, so poly is certainly not sexual orientation (relationship orientation? ;))
However, that's not about dictionaries, but legal issues, and discrimination in the view of law. That said, i'd indeed prefer to have broader and more general approach and not something vaguely assimilationist. Theoretically, because in practice i have impression that not specifically singling groups out means invisibility. Damn.
Although polyamory was initially a choice for me, it soon via experience became clear to me that it is indeed who I am and really was during the years of denial when I tried to make the traditional model of love and marriage work. But I was like the proverbial square peg in a round hole. Once I found the square hole, everything clicked and I knew in my heart of hearts that polyamory is who I am and always will be. I've known for a long time now that for me polyamory is my sexual relationship orientation. My sexual orientation is bisexual.
I agree with Desmond Ravenstone.
The law should not be codifying which identities are a choice, which are "not", and then using the "choice/no choice" framework to decide whether or not people are legally protected from discrimination.
I like the idea of designing legal protections based on "sexual/gender identity and practice" or "perceived sexual/gender identity and practice." One does not have to actually be gay, for example, to face discrimination if one's employers think one is/may be gay. Or a case may revolve around an identity and not a current practice: someone who comes out as poly but currently has one or no partners should be entitled to the same protections if he/she is subject to adverse employment action on the basis of that disclosure.
This model would enable protections for many (overlapping) groups of people at once: gay, lesbian, bisexual, pan/omnisexual, asexual, kinky, polyamorous, transgender, transexual, intersex, genderqueer, etc. It would also help to overcome the legal hurdle of only being able to bring suit for membership in one category of protected class at a time.
See, here's where it goes wrong. If "polyamorous" is a sexual orientation, then someone who is bi poly would have two sexual orientations, and it is possible the law would be written that they would only sue for protection under one. And if the discrimination was caused not because they were poly, or bi, but both, then the suit would fail.
This already happens in the law with the intersection of race and gender, etc. You can only bring suit under one category of protected class at a time. You have to bring the suit under the laws for race, or under the laws for gender. :-( But if white women face no discrimination and Black men face no discrimination, and only Black women do, then you're in trouble. Conceivably, the law here could allow you to sue for discrimination on the basis of two or more sexual orientations, but it still would not help you if you were, say, poly and trans, where one category is a "sexual orientation" and the other is a "gender identity." The whole thing could even turn into a sex discrimination suit if in that office it was OK for men to have multiple partners and a woman was harassed or fired for the same behavior.
There is also a category of people here who would not be subject to legal protections: "monogamous" people who are involved with poly people, and thus part of a poly structure, community, and/or household. Say I identify as monogamous but I'm dating X, and X is dating and/or married to Y and Z, and Z is dating Q, and I live with X, Y and Z. If my employer discriminates against me for my choice of household, would I feel comfortable stating that my sexual orientation is "polyamorous" (even though I would personally never have more than one sexual partner at a time), and bringing suit on those grounds? "Perceived sexual/gender identity and practice" would be a much better fit.
Overall, I suggest a challenge to the predominant framework that the degree to which something is a "choice" or not is the sole and crucial determinant of how much legal protection against discrimination one should be afforded. What matters is how someone identifies and what they do, and how that subjects them to discrimination -- not to what degree deep do
So, is monogamy also going to be defined as a sexual orientation?
I understand what Joreth said. However, I also do not consider being polyamorous my sexual orientation, I consider it my relationship status. It's how I approach life and love. Instead of practicing serial monogamy with sometimes overlapping secret relationships, I choose to be open and honest with my partner(s) about our relationship and not exchanging one relationship for another.
So even though I understand the legal importance of labeling polyamory as a sexual orientation, I resent it because being polyamorous has nothing to do with the gender of the people I have sex with, it has to do with my relationship with them.
I also don't know how much such laws will actually change anything. In a right to work state such as Utah you can be fired or not be hired for any reason, no explanation needed by the employer. And proving discrimination based on gender, sexual orientation or even religious affiliation is almost impossible to do. In fact, I don't know of one case of religious discrimination in the workplace that has ever been won by the plaintiff in this state. All the employer has to say is "It had nothing to do with their religion, there was simply more qualified applicants." The same can be said for sexual orientation.
All that said, at least a legal recognition of polyamory as a valid lifestyle choice will make inroads to making it more societally acceptable in the future. It may also make some progress in allowing poly partners to have legal, health and beneficiary benefits.
As a to be mother, the father of my child being unknown as I have a boyfriend and my girlfriend is transgender, this does concern me. I do believe that defining it to the government in any form is better than leaving it up to my government to decide whether it is safe for my child to be in my home. Though I have spoken with case workers for child protective services and been reassured that unless my child is abused it cannot be taken from me, I would still like the peace of mind that they can't later change their minds due to my sexual preferences.
I understand that it is personal to some how we are labeled, but it would be EASIER to get things done, by defining it with preexisting terms.
Also, my 'polyamorous' relationship exist only between my two partners. I see myself as a poly-monogamous. But to broadly define it as I said is better than to try defining my individual situation, so that I am safe.
My wife was fired recently for us being swingers. We are doing the business for discrimination against sexual orientation. And to win, poly needs to be an orientation. THAT'S why you need the label. To be protected against discrimination and have the law on your side.
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