Marriage Consummation Laws: “Sham” Marriages, Immigration, and Asexual Inequality
Join us as we delve into the complex world of marriage consummation laws, asexual relationships, and the fight for equal rights. Expect to have your understanding of marriage challenged as we unpack laws across all US states as well as international implications.
- Courtney's just barely passable spreadsheet of US marriage consummation laws and annulment qualifiers
- Cornell Law School definition of consummation
- Asexual woman fled home over forced marriage and ‘corrective rape’ threats
- Netherlands: Council of State rules that asexual applicants do not fall under the exception for LGBTI people in the application of the “safe country of origin” concept
- The Swedish Case "Relationen mellan två kvinnor var sådan att ett parförhållande enligt sambolagen förelåg"
- This landmark Swedish court case is a huge win for asexual rights
- Live-In Lovers in Sweden, Including Gays, Given Same Rights as Married Couples
- Marriage Visas: Are Couples’ Sex Lives Fair Game During the Interview?
- Gay Asylum Seekers Asked Intrusive Questions About Sex Life In Visa Interviews
- Does Your Sex Life Impact Your Immigration Case?
- Gay and lesbian asylum seekers face ‘intrusive’ sexual questions
- The Letter to Mitch McConnell
- Friends are saying ‘I do’ – but might not understand the legal risks of their platonic marriages
- Elon Musk Suggests 'Childless' People Should Lose the Right to Vote
Courtney: Hello, everyone, and welcome back to the podcast. My name is Courtney. I am here with my spouse, Royce. And together, we are The Ace Couple. We are, indeed, a married Asexual couple, and today, we are going to talk about the legal implications of marriage and, more specifically, marriage consummation laws.
Courtney: This has been something I’ve wanted to talk about more in-depth for a while. But I don’t relish reading a lot of laws [laughing] and legal documents. I do it when I must. And I really wanted to have, like, numbers ready for you. I wanted to be able to tell you how many states have marriage consummation laws. And, oooh, buddy, let me tell you. I did it. I went through the marriage laws of every single state and all of the US territories, so I have a nice little spreadsheet, and we’re gonna have a conversation today.
Courtney: So first, though, we need to set a couple of expectations for what we’re talking about legally here. Because obviously, we are not lawyers, we are not legal professionals, wut we have done extensive research on sort of the implication of marriage laws like this. And so what I really need everyone to understand so we’re on the same page right off the bat is that, even before we look into these laws and take the literal language of them to interpret, we already live in a country and under marriage laws that already sort of have two completely different definitions of what marriage even is.
Courtney: And I’m not gonna rehash absolutely everything for you, but for those of you who have been around for the last year or so, you know that last August, we did a four-part series where we talked about this political attack against Asexual marriage, what the religious right wing in the US are saying, and a very, very common theme that we saw, time and time again, were people from the religious right wing — many of them lobbyists, activists, scholars — who say, with no uncertainty, that marriage is synonymous with sex and consummation. So there is an entire camp of people in this country, right off the bat, who hear the word “marriage,” and they do not think that can be separated from a sexual relationship. To them, it is one in the same. And we need to understand that before we go any further.
Courtney: Because lately… We’ve had a new resurgence of Acephobia online lately, most specifically on Twitter, most specifically directed at Yasmin Benoit first, because she was recently the first-ever Asexual Grand Marshal of the New York City Pride Parade. And that’s fabulous. I love that for her. I love that for our community. But that gave an extra little boost of visibility. And along with that, out comes all the people saying, “Oh, well, Asexual people are just trying to distract us from the real issues. The only people who have real issues are gay and trans people.” Or sometimes they’re even trans-exclusionary, so they’ll say, “The only real issues are gay issues.” And they’ll say, you know, “Aces don’t face any discrimination,” and “No one’s murdering you because you don’t want to have sex,” and all these horribly reductionist arguments.
Courtney: And the theme of the last couple of weeks has kind of been: “What rights don’t Asexuals have?” And unfortunately, I’ve got a laundry list of them. [laughs] I have so many threads. We have so many podcast episodes covering a variety of things. So even though today, we’re talking about marriage and marriage consummation laws, it does not begin and end here. And in fact, marriage has not been the end-all be-all of any branch of queer liberation, period. But this is kind of just an astonishingly obvious one for me. And it is wild to me that so many people don’t see marriage inequality when we start talking about marriage consummation laws.
Courtney: And even the ones who might budge and say, like, “Okay, sure, those laws are on the books,” they’re like, “Well, no court is actually gonna try to invalidate your marriage just because you don’t have sex,” or “How are they gonna prove it?” So we’re also going to talk about some of the issues where that actually is a very real situation that literally does and can and has happened.
Courtney: So, buckle up, because you know things are very serious when Courtney makes a Google Sheet. [laughs] I’m not someone who enjoys spreadsheets, but here we have it. And, Royce, you’re maybe gonna have to help me with the math here, because I basically have two different columns, and I wanted numbers, right? I want the thesis of this episode to have “Here’s how many states have these laws.”
Courtney: And here’s the weird thing. So, my first column is: “Does this state have a marriage consummation law: yes or no?” But I have two that are caveats where it’s like a “No, but…” And my sort of criteria for this was combing through all of the marriage clauses in each of these states and finding if there is, in fact, the word “consummation” anywhere in it.
Courtney: Because I have also heard the argument that, “Oh, actual marriage consummation laws are so archaic. They’re so antiquated. No one’s actually forcing you to have sex,” yada, yada. And they’ll say, “Well, ‘consummation’ just means, like, you signed the paperwork and it’s done.” Uh, that’s patently untrue. In fact — we’ll link all resources I’m talking about in the show notes, but I know full well from looking at conservative legal scholars about what their opinions are on marriage, and I know that they say that consummation is integral to marriage.
Courtney: So I just wanted to say, like, well, what are some of the leading law schools saying? Because it’s kind of hard to argue with, for example here, Cornell, Cornell Law School They state that “‘Consummation’ means the completion of a thing. Some common uses of the term ‘consummation’ in a legal sense include, one, in the context of marriage, ‘consummation’ means the actualization of marriage. It is the first act of sexual intercourse after marriage between a husband and wife.”
Courtney: And obviously, that is already very antiquated, because they say specifically “husband and wife,” and, at least for the time being, same-sex marriage is legal in this country because of the Supreme Court decision Obergefell v. Hodges. But it even specifically states, via Cornell, that “Consummation is particularly relevant under canon law, where failure to consummate a marriage is a ground for divorce or an annulment.” So we have legal institutions saying, “Yes, the word ‘consummation,’ in the context of marriage means sex.” That is pretty clear-cut. So if the word “consummation” is in any of these states’ marriage laws, that is an expectation, that is an implication, if not an outright necessity.
Courtney: So, numbers-wise, before we dig into some of these states… Because some of the states are just a little more overt than others — like, the word “consummation” is a little more off-handed and it’s put in a much more edge case kind of scenario, and some of them it’s just like, “Boom, to get married, you must consummate.” So these are varying levels of, I guess, overtness.
Courtney: But based on my most recent count, 29 US states have marriage consummation laws. That is wild to me. That is over half. And I went through all the territories as well. It was a little bit harder for the territories. It was a little harder to find, you know, Puerto Rico, Virgin Islands, American Samoa, because their laws are not always in the same sort of mass legal databases that all the states are in. But I did go to try to find those. And I did find that at least Guam and the Virgin Islands also have the word “consummation” present in their marriage laws. So 29 states and two territories. Seems like a lot. And that’s just on page, in paper. That’s not even considering any case where you may be in front of a conservative judge who thinks that marriage is inherently sexual, regardless of what the law says on paper.
Courtney: So those states where I did find a consummation law were Alaska, California — believe it or not, but California had, like, one of the worst, most obvious marriage consummation phrases. That really surprised me because their base, like, family code number one line in their marriage laws is: “Validity of Marriage. California Family Code 301. Two unmarried persons 18 years of age or older, who are not otherwise disqualified, are capable of consenting to and consummating marriage.” And that one just… I don’t even want to say it’s the worst, because there are some other ones in here that get also really ableist, also. Some of these laws are terrible. So this isn’t necessarily even the worst one, but it’s the one where I found it the fastest. It’s like, this is the first sentence [laughing] of this code. What are you doing, California?
Courtney: We also have Delaware, Georgia, Idaho, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and then Guam and the Virgin Islands all have some type of consummation clause in their marriage code. Now, I did have two states where —
Royce: I saw two of those that didn’t fit the format.
Courtney: I gave them a “No, but.” [laughs]
Royce: What’s going on in Louisiana and Maryland?
Courtney: Louisiana and Maryland. You see, it doesn’t say the word “consummation,” but… I put Louisiana: “No, but needs religious therapy” [laughs], and Maryland: “No, but needs some kind of therapy.” [laughs]
Royce: Which I guess is mildly better?
Courtney: [laughs] It’s so wild. So, to get married in Louisiana, you technically have to have marital therapy that is by a clergy member — [laughing] like, a member of the church. And even the one that’s a little more secular, like Maryland, it can be a religious figure or it can just be, like, a family counselor, so it can be a more psychiatric professional, I guess — a psychology professional. I don’t for two seconds trust that there aren’t at least some people leading these therapies that aren’t going to talk about how sacred and holy and important sex is [laughing] in a marital relationship. I mean, I have, as a single person and as a minor, had horror stories with psychologists overemphasizing sexual relationships, that two people going in to get married — it’s like, I’m gonna say that’s not technically a marriage consummation clause, but I don’t like it. It’s suspicious. [laughs]
Courtney: But then, you see, here’s where things get even more complicated for our numbers. Because those 29 states say the word “consummation” in the context of marriage. We are told, legally, that does mean sex. There’s an added caveat of, “Is there annulment offered for the marriage for lack of consummation?” And there are some states that don’t have the word “consummation” in their laws, but you can still seek annulment for lack of consummation. So to me, that is, like, the implication. That’s what we’ve been talking about from the religious right wing of this country, where their assumption is that sex means marriage, marriage means sex, they are one and the same, inseparable. And so the annulment for lack of sex was so much more complicated than actually reading the marriage laws. Because on my lovely spreadsheet here, I have some “Yes”es, I have some “No”s, but I have so many “Kinda”s. [laughs] Kinda or maybe.
Royce: And yeah, looking through your list, the number of places I see you marked down with a firm “No” — both in marriage consummation laws and a “No” for annulment, instead of a “Kind of” or “In this situation” or something like that — there are only two states.
Royce: And a few other places. It’s Indiana, New Mexico, DC, American Samoa, Northern Mariana Islands, and Puerto Rico.
Courtney: Yeah! So that’s why I’m saying, like, numbers are weird. I can show you 29 states that have the word “consummation” in their marriage clause, but so many more allow for annulment that there might only be two states where it is not at least implied to be a requirement. And it’s just baffling.
Courtney: But let me give you an idea of a firm “Yes” versus a “Kinda” example. So Alaska, for instance, specifically says: “Voidable marriages. If either party to a marriage is incapable of consenting to it at the time of the marriage for want of marriageable age of consent or sufficient understanding, or if the consent of either party is obtained by force or fraud, or if either party fails to consummate the marriage, the marriage is voidable.” So that is a very explicit, on the paper, Alaska says, “Yes, failure to consummate is grounds for annulment.”
Courtney: But then there are some that are more… “Kinda maybe.” “Kinda maybe.” Because pretty standard across the board, for a majority of states, you’ll see these more broad, sweeping terms for something that is considered a voidable offense, and you’ll have things that are just like, “Fraud.” [laughs] And it’s like, okay, well, what does “fraud” mean? And some states are more strict than others about what it can mean. Some specifically say that fraud could mean entering into a marriage with no intention of consummating.
Courtney: But then you also get some that are so much more vague and could be even more sinister, considering how highly medicalized Asexuality is and how so many people write it off as a disorder. There are so many, so many clauses that I’ve found that’s like, “A concealment of a disease is grounds for annulment.” And sometimes they’re written in there to specifically mean STDs or STIs. But I’ve also seen some that are just so ableist, like, “Concealment of a condition that means you’re not physically capable of consummating the marriage.” [laughs]
Courtney: And then there are a couple that are a little bit better, I guess? Which, are they better? Yes. I just think it’s very, very weird that there is any legislation under any situation that is legislating sex lives, period. So that’s my caveat going into this. But there are some that say you can only annul the marriage for lack of consummation if you didn’t know going into the marriage that there wasn’t going to be consummation. And I only saw that maybe once or twice. So that’s like, alright, so if there’s a situation where theoretically there’s a conversation that’s like, “Sex isn’t going to be a part of our marriage,” and both parties are clear on that before the marriage, then that’s fine. But now you’re getting into so many weird specifics that it’s like, [laughing] why are these laws to begin with?
Courtney: And then you also… What I saw, combing through grounds for annulment in all these states, the word I saw time and time again was “impotent.” And that’s possibly antiquated wording. But the number of people who will say, like, “Oh, you’re not Asexual, you’re just impotent” — I’ve heard that. People say that. And people do think that. Impotence being a grounds for annulment, regardless of what that word actually means in specifics for case to case basis, still seems very, very weird to me. And some of them are like, “Oh, yes, impotence is a grounds for annulment, but impotence must be diagnosed by a doctor.” What? What even is that? Is there a court order in any situation where someone’s like, “Oh, my spouse won’t or can’t sleep with me,” and the court order is like, “Alright, got to go get a physical exam from your doctor to diagnose your impotence”? What are we doing? [laughs] What are these laws?
Royce: Well, all of these weird situations, edge cases, whatever you want to call them come about from trying to regulate something that shouldn’t be regulated in the first place. That’s why they’re so strange.
Royce: Because, yeah, the impotence argument is assuming that everyone is marrying for the purpose of procreation.
Royce: And so I clicked on one state at random and saw, like you mentioned, “Fraud” being not declaring that you intend to be celibate for your entire life —
Royce: “Fraud” being that you get married without telling your spouse that you are pregnant with someone else’s child.
Royce: And I saw the STD — like, not declaring an STD or STI. The document said “STD,” even though that’s a little dated.
Courtney: I mean, all of the language in these are incredibly, incredibly dated. But yeah. Some states will use “Fraud.” Some states will use “False pretenses.”
Courtney: But then there’s also… And here’s what’s so much weirder, too, because there are kind of two different phrases that have different legal implications. Because there is a “voidable marriage,” which is like fraud, for whatever that means, where someone can be like, “I have had a fraud done against me. I would like to void this marriage.” And that’s voidable.
Courtney: But then there are just “void marriages,” and that is a marriage that was entered illegally. So a lot of the cases are, like, if a minor tries to get married in a state where that’s not allowed, well, you weren’t of the legal age, so that is already a void marriage, because you already broke the marital law to get into that. Or the words they will use are “bigamy” or “bigamist marriage” or “polygamy.” Those are the words you tend to see in legislation like this. They’re like, “If you’re already legally married to someone, then your second marriage is just void.” It’s not voidable, it’s just void.
Courtney: And so, there are situations where, if the marriage consummation is overt enough in the clause in the law, and it says consummation is required to make this a legal marriage, then there are some states that would just consider that a void marriage and not even a voidable one. So I didn’t even go through the hassle of making a column of, “Is this a void marriage or a voidable one?” because that one made my head hurt. [laughs] That was taking it too far.
Courtney: But also just… [sighs] So, in combing through these laws, one after another after another, you really, really, really start to understand heavily how much these laws are built around the concept of sex and procreation. Because I found states that specifically say that, like, incest between first cousins are allowed as long as both cousins are above the age of 65 and/or don’t have the physical ability to procreate. And it’s like, oh! Never have I read a law like that. But I saw that in a couple of different states. And it’s like, I don’t even know what to do with that. But that’s only one example of all the weird little things you start to see when you’re reading these back to back to back. It’s like, these are all about sex. All of them, just about.
Courtney: Mmm, yeah, okay, I wanted to pull up California again because I was… I expected better of you, California! [laughs] I’m disappointed in you. [laughs] So not only do they have the word “consummation” in the very first sentence of their marriage laws, but this is the wording for “annulment”: “The courts may find a marriage invalid for a variety of reasons, including: one of the spouses is irreparably physically incapacitated and unable to consummate the marriage.” Are you kidding me? California, what are you doing?
Courtney: So then, let’s take Kansas for an example. So, Kansas, I had “No” for “consummation” being in the marriage laws, and I put “Kinda” for annulment, because there are a couple of different things that you could technically put lack of consummation under if you made a case for it — one of those being “Fraud,” which, in Kansas, is so very specifically defined as “One spouse lied about or hid something essential to the marriage.”
Royce: Right under that, though — I pulled it up as well. Right under “Fraud,” it just says, “Mistake.”
Courtney: “Mistake.” [laughs]
Royce: Which just says, “The spouses would have not married if they knew certain facts.”
Courtney: Which is apparently not fraud. That’s just a mistake. But Kansas does have a clause, which other states do as well, called “Sham marriage.” And sham marriage is a weird one, because that, again, is one that you hear frequently with, “You’re not having sex. It’s not a real marriage.”
Royce: And the line next to it says, “The spouses didn’t mean to get married, such as a joke marriage or while intoxicated.”
Courtney: Yep. Which sounds a lot funnier and more lighthearted, but the term “sham marriage” has so many more implications that often are qualified by a lack of sex. And I do want to get into those.
Royce: I feel like I’ve also heard the words “sham marriage” to describe a marriage solely for, like, citizenship or financial benefits or something like that.
Courtney: Yes. And that’s what we’re going to get into. Because, well, how do you find out if someone’s just getting married for tax benefits? How do you find out if someone’s just getting married for a green card? Well, you ask them invasive questions about their sex life. I’m not making this up.
Courtney: But before I get too mad about that, Kansas also has impotence as grounds for annulment. And it just says, “The spouses didn’t know one spouse was incurably impotent.” [laughs] My gosh! This was… it was painful to sit through every single state and read all of their laws and all of their grounds for annulment. It was painful! I did it so you don’t have to.
Courtney: So, let’s talk about the actual dangers to an Asexual marriage, a queerplatonic marriage, a sexless marriage, whatever it is you want to call it, a marriage that has not been consummated. And this is what really, really gets me, too, because the people — specifically the people online — who go, “Oh, well, what rights don’t Asexuals have?” and you say, “Oh, well, marriage consummation laws, for starters,” and they’re like, “That’s not a real thing”: first of all, it is.
Courtney: And people will make it personal on purpose. So, for example, if I say, “Well, you know, as a married Asexual, there are these marriage consummation laws in a shocking number of states,” people will be like, “Well, no one’s banging down your door and invalidating your marriage. No court is trying to force you to get an annulment.” And there’s just such a failure of creativity and a failure of compassion for arguments like that.
Courtney: Because we are quite privileged in our marriage. In fact, gaining a few privileges was a perk of getting married, in our case. I’m not too worried about us. There are religious conservative people in particular who will send us hate mail and call us “insults to humanity and nature.” There are people who will say we don’t have a real marriage. There are people who will say that. But I’m not worried about a court trying to fight whether or not we can continue doing our taxes together. Not to say it’s impossible. I mean, theoretically, if we got to a big enough level of visibility and we pissed off exactly the right people, someone could maybe try to make a case. I mean, Matt Walsh has already canceled Asexuals and made at least three videos about how much he hates us. So, there are people who do genuinely hate us. And wherever there is hate, there is discrimination, and that’s where we need legal protections. That’s where we need Asexuality to be a protected class of people so that we can circumvent unfair discriminations like that.
Courtney: But when I talk about marriage consummation laws, I’m not saying this out of defense for my own marriage. I am saying this for people who have far fewer privileges, who are in much more precarious situations, because this does actually happen. And one of these examples is for marriage visas.
Courtney: And before we get into specifics here — because I have some articles with actual examples and actual quotes and real questions that have been asked to people — if you’ve never been invasively questioned about your sex life, that is a privilege. And that’s a thing that Ace people have to deal with. It’s also a thing that gay people have had to deal with for decades. Trans people still need to be invasively questioned about their sex lives when seeking gender affirmation therapies and surgeries. These are things that still happen. Just because the straight cis person online who doesn’t think Asexuality is a real thing thinks that nobody is asking these questions, nobody cares — they’re talking from a place of privilege, because they have not been put in these situations.
Courtney: So marriage visas, green cards, US citizenship — and this hasn’t just happened in the US, by the way. It has happened here, but it has happened in numerous countries. And I think a lot of people who have never gone through this themselves or known someone who’s gone through this just sort of think that if you marry a US citizen, you can just become a US citizen. I think especially media really fails hard at showing people the reality of this. Because people will also say, like, “Oh, well, you just got married for a green card,” as if that’s so easy. Like, just getting married is actually not the end-all be-all. and it’s not an automatic pass. I actually have friends who have been married to Americans for a decade or more and are still having immigration issues. It’s very, very complicated.
Courtney: And immigration services can ask wild questions of you. And it has been well-documented that queer couples get these invasive questions far more often as well. So here are some interview questions about sex that I found from LawAndBorder.com. This is in an example of a same-sex couple seeking a green card based on their marriage. And they get started by asking things like, “When did you begin dating? How did you begin dating?” But then they’re asked if they’re monogamous, and they’re asked, “Have you had any other sexual partners since you met?” And that’s just, to me, completely none of anybody’s business and shouldn’t matter when you’re trying to qualify for citizenship.
Courtney: But even in this country, which is something I’ve said before with Obergefell v. Hodges, the way they argued before the Supreme Court that same-sex couples should have the same rights as opposite-sex couples is that they can basically be samesies. You know, this same-sex couple, they can also have a romantic, sexual, monogamous relationship with the intention of having kids one day. That was argued. It had to be argued apples to apples: “Look at this same-sex couple functioning exactly the same way as this other couple.” And where did the model of the other couple come from? It came from religious doctrine, mostly.
Courtney: But apart from the questions about monogamy, here’s how specific they got: “When did you last have sex? Where did you last have sex? How often do you have sex? Are you planning on having children, and how many? Do you use birth control? What type of birth control? Is your husband circumcised? Does your spouse have any tattoos in private places? At what point did you realize you were gay? Have you had sex with someone of the opposite gender?” Like, clearly, some of those are for same-sex couples, some of them are for opposite-sex couples, but can you imagine sitting before an immigration officer, you are married to a US citizen, and in order to get your marriage visa, you have to answer these deeply personal questions about your sex life?
Courtney: And this immigration officer, like, they are allowed to ask whatever they think is relevant to determine whether or not you have a sham marriage! Like, that’s the phrase here: “sham marriage.” And if they think that sex is synonymous with marriage, if they think it’s important, if they don’t think you’re having the right kind of sex, enough sex, if you’re not having monogamous enough sex, whatever it is that they think, they can deny you, if they do not think this is a bona fide marriage. And these are not even judges. These are not even people being brought before a court. These are just immigration services. These are just immigration officers. So to say that no one is ever gonna discriminate against you because you don’t have sex: absolutely not. Absolutely that is untrue.
Courtney: And, as I said, the US government is not the only one who asks these probing, prying questions. I found examples of gay asylum seekers, a Bangladeshi couple who are seeking asylum in Australia. And these questions — I mean, if you thought the ones I just read were invasive and private, this one gets even more just disturbing. And this isn’t even just for a marriage visa. These are asylum seekers, so they are trying to flee their home country due to persecution.
Courtney: From this article I found, it says, “In the first interview, one of the men was asked if he had sex with the other man the night before, and if not when was the last time he had sex with him. He was then asked which room they had sex in, what time of the day they had sex and how long it lasted. Quote, ‘Was it all over within minutes? Or for a longer period? 30 minutes to one hour?’ the officer asked. The interviewer then asked the man, ‘So you gave him oral sex. Did he ejaculate? Ejaculate… Did he reach a climax? Did he come? And then oral sex was given to you. Did you come?’” Are you kidding me? It’s vile. This is so disturbing. Imagine fleeing your home country due to persecution for being a gay couple and having to sit in a room, separated from your partner, being asked these invasive questions about your sex life. That is traumatizing. That is awful.
Courtney: And it just gets — and I’ll link this as well, because I don’t particularly want to be reading all of these questions. But they’re literally asking, like, “Oh, was drinking his cum a problem? Why weren’t you using a condom?” And these two are being questioned separately. And so, one officer was even like, “Which one of you gave oral sex first? Well, you know, the other guy said it was the other way around!” Like, are you kidding me? And this couple, their protection visa applications were rejected after this set of interviews. So not only were they asked these horribly, horribly inappropriate questions in perhaps the most traumatizing fashion, they were then denied.
Courtney: And the thing about this is: sure, there are perhaps situations where an Asexual couple might be married, and there could be people asking probing questions to determine if it’s a sham marriage, and your sex life is 100% on the table for that. And if someone isn’t satisfied with the fact that you aren’t having sex or you aren’t having enough sex, they can deny you that. In cases of asylum, it can be even more complicated. Because I’m not super well-versed in Australian law, so the Australians among us will have to educate me, but in the US and in many other countries that I’m aware of — the UK, other European countries, for sure — asylum can be granted to gay people, because homosexuality is a recognized sexual orientation. So if you do come from a country where that is persecuted, if you are fleeing that country, you could be granted asylum in any number of countries that might offer that.
Courtney: But rarely is Asexuality a protected class. So there definitively are — I know of at least two cases where an Asexual person has been fleeing their home country. And this could be due to any number of violences: it could be due to corrective rape; it could be due to conversion practices; it could be due to arranged marriages. But if you seek asylum and you’re saying, “I am Asexual, and here’s why this is an issue in my country,” it’s not a protected class in most places, so it is not going to get approved. And in fact, there are cases where it hasn’t been approved.
Courtney: There was, for example, a 26-year-old woman living in Senegal who came from a family who was trying to cure her. They were trying to pray over her that she would be fixed, and she faced threats of corrective rape and forced marriage. And so she attempted to flee her country. She’s a sex-repulsed Asexual woman. And you can read about her case a little bit more in the show notes. But she was essentially looking for a country where she could be granted asylum as an Asexual person, where she could flee and get that protection, and she couldn’t find a country that would do that.
Courtney: And in fact, on the books from 2018, the Netherlands did have a ruling that Asexual applicants do not fall under the exception for LGBTI people in the application of “Safe Country of Origin” concept. So that is already on the books. Specifically, Asexuals. The Dutch Council of State has said Asexuals are not a protected class for asylum. And the person who applied for asylum in the Netherlands on the grounds of being Asexual was from Algeria. And the Netherlands basically argued, “Well, Algeria is considered a safe country of origin.” They’re like, “Nobody’s persecuting you for being Asexual in Algeria! That doesn’t count.”
Courtney: And even in our country, in the US, Asexuality is not mentioned in most, if… hardly any, anti-discrimination laws. New York has, specifically on the books, said that Asexuality is included in more general non-discrimination legislation. But this woman from Senegal, knowing this, contacted a New York lawyer asking if she could perhaps get asylum in New York. But despite the fact that New York says, “Yeah, you can’t discriminate against someone on the basis of being Asexual,” this lawyer had to say, “That doesn’t mean it’s a grounds for asylum, because that is a different legislation.” So there weren’t any cases; there wasn’t a precedence for this.
Courtney: And in the case of this woman, after not being able to find help in the Netherlands, not being able to find help in the US, eventually was able to land a job in Ireland and move there on a working basis. So she was still not able to get asylum anywhere, even though her Asexuality and the persecution she was facing as a result of it was the reason she was leaving her home country.
Courtney: And this is just one of the examples that we can see and we can read about and she has spoken about. But think about how many people might not be able to speak publicly. Even in the article where you can read about this case, they are not using her real name. If anyone ever is granted asylum, they’re probably not going to be very willing to speak about it. I know of at least one other case as well, and this is one, too, where unfortunately, can’t talk too publicly about it.
Courtney: But there are cases of Ace people who have, in asylum applications, basically lied and say, “I’m gay,” because they know gay is a protected class, but Ace is not. And I don’t think anyone should have to lie. No one should have to perjure themselves to find safety and shelter. These laws just need to be broadened to accommodate the full spectrum of queerness. And that’s what we’re talking about when we are talking about Aces who need protection, Aces who need access to equal rights, that we need legislation that ensures that we are not only not discriminated against, but that we are actively protected when needed. Because, as I hope we have demonstrated, there are a variety of concerns here. And these are not just Aces making it up either. There are real people who have cases like this, and their lives have actually been impacted.
Courtney: And even though I myself am not a lawyer, I can read from other lawyers. There are people who will say, “Oh, this is all just theoretical,” “That’s not true,” or “You’re just making things up,” or “You want to be oppressed so bad.” That’s a favorite, isn’t it, for them to say? I have an article right here, written by an attorney, on the attorney website, about “Does Your Sex Life Impact Your Immigration Case?” And it literally says, “One common way to obtain a green card is through marriage. Congress enacted laws to prevent immigrants from obtaining green cards through ‘sham marriages.’ In order to determine whether a marriage is bona fide or fraudulent, immigration officers may sometimes ask questions about a couple’s sex life or use of birth control. For example, if an officer suspects that a marriage is fraudulent, they may separate the couple and ask questions (including intimate questions) to determine if their answers are consistent. Furthermore, if the marriage is never consummated, that can be seen as evidence that the marriage was entered into for immigration purposes.” I’m not making this up. This is from a lawyer.
Courtney: And the conclusion even says, “Conclusion: As much as you may assume that all things relating to sex are private, unfortunately, that is not necessarily the case when it comes to applying for a green card or naturalization.” Like I said, if you’ve never been invasively questioned about your sex life, that is a privilege. We don’t all have that same privilege.
Courtney: And this here is an article that I have mentioned in the past, back when we did our four-part series in August of 2022. Definitely, please do check out those episodes if you haven’t yet, because they are very much relevant to what we’re talking about. But this article is called “Friends are saying ‘I do’ — but might not understand the legal risks of their platonic marriage.” And this is, again, not just written by anybody. This is written by a postdoctoral fellow in comparative law. So, this is a legal scholar talking about the legal pitfalls of platonic marriage. It’s stating that, “Legally speaking, it could be seen as a sham marriage,” which is a phrase we see, time and time, again in the actual marriage laws, state to state.
Courtney: And we have here, “Kerry Abrams, the current dean of Duke University School of Law, has outlined different doctrines developed in welfare law, social security law and immigration law” — basically, anything that detecting a fake or a sham marriage could come under consideration. And in these situations, it is saying that, if a marriage is deemed to be a sham, “the individuals expose themselves to criminal or civil liability and a termination of benefits.” Now, benefits can be any number of things: tax write-off, housing allowance, to anything that you get from being married. We were talking about marriage visas.
Courtney: And it says that, should a marriage like this be questioned, “Two married friends” — “friends” is the word they’re using, but platonic marriage is sort of the focus of this article. “Two married friends will need to demonstrate before courts that they did not have a, quote, ‘singularly focused illicit’ purpose of acquiring some sort of government benefit. But they’ll have a hard time doing so. That’s because when courts seek to understand whether the couple intended to live together as husband and wife, they’ll be assuming the family norm in which the couple has a sexual relationship.” That’s the grounds we’re starting from. And that’s what so many people fail to realize, is that the courts operate under precedence, and their precedence is: marriage equals sexual. That’s what they’re going off of. So this right here is saying, you know, someone questions you, you’re gonna have a hard time making your case.
Courtney: And so the point I really want to drive home here is the fact that marriage law is already so heavily wrapped up in consummation that we really, really do need to add protections for Asexuality before an issue does come up, before we do have something that’s pushed all the way to the Supreme Court. Because, especially the current state of our Supreme Court — I don’t know if you’ve noticed, but they’re rolling back rights left and right.
Courtney: And to say that “It’s never gonna happen, it’s impossible, it’s not a concern, it’s a non-issue,” is also just completely false, because we did have a case about a non-sexual relationship and what rights the person in this relationship had in Sweden. And Sweden’s kind of a really interesting case already, because marriage is not quite as… sort of sought-after as a social standing as it is here, and there are lots of long-term established couples that don’t necessarily get married, or they don’t get married until they have kids, or they might have kids and still not get married yet.
Courtney: But Sweden, for a long time, since the ’80s, has had legislation on the books that basically gives live-in relationships similar rights to couples who are married, either by church or by state, and in Sweden they use the word “sambo.” They’d say, like, instead of “This is my husband” or “This is my wife,” they’d say, “This is my sambo,” which kind of literally just means “my live-in partner.” Like, you do have to live together. It’s probably closest to domestic partnership here in the US, but from my understanding of it, it’s even a little bit stronger, because there are things in the US that domestic partnerships can’t access that you do need to get married for, depending on state and different laws and whatnot.
Courtney: But there was just last year a case — and this wasn’t even a case of immigration, this wasn’t even a case of government benefits at all, which has mostly been the concern here, for asylum or green cards or housing benefits, tax benefits, et cetera. This was essentially boiling down to an insurance claim. There were two women who lived together in Dalarna, and they had a joint household, joint finances. And some in their family thought that they were a couple; some didn’t really see them as a couple. And when one of these women died in 2018, she had an insurance policy, and the insurance policy was written in such a way that the beneficiaries would sort of have a hierarchy. It would go to a spouse or partner or a sambo, a live-in partner, and if there wasn’t a partner like that present, it would then go to secondary relatives. But there was a dispute because this woman tried to collect the insurance policy. Again, they’d been living together for years. But someone in the family said, “No, she’s not entitled to this compensation because they just lived together. They don’t have a sexual relationship.”
Courtney: So this was actually… the question was: “Do these two women get the same protections from the Cohabitation Act, the same thing that gives these rights to your sambo upon death, if they weren’t in a sexual relationship?” And the Supreme Court in Sweden voted “Yes.” And I would consider this to be a landmark case, for — I don’t know, and I don’t know if there’s any way that we could ever know, if either or both of these women considered themselves to be Asexual, if they considered this to be a queerplatonic relationship, and I don’t want to label them that way, you know, against potential wishes. But the fact of the matter remains the same: two women living together in a relationship that is not sexual. And they were about to take this partner’s rights completely away, or they could have ruled that way, just because they didn’t have sex. And that’s wild to me because I don’t think we should be in this situation to begin with. But I’m glad that they made the right decision here.
Courtney: And so, just because I’m not aware of a case like this that has happened immediately here in our country doesn’t mean that there aren’t 100 different ways that a case like this could crop up. And we really — I mean, I’m telling you, man, with the current state of our Supreme Court — they overturned Roe v. Wade, they’re overturning affirmative action — like, six people, are ruining the lives of millions. We really need to be more proactive about protecting more people and putting laws on the books that do protect people. Because, even if it hasn’t yet, it might.
Courtney: And I don’t trust the current state of things and the current state of the Court to make the right decision. Even if it doesn’t get to the Supreme Court, even if it’s a more local case, I know how vastly different the concept of marriage is between a conservative judge and a liberal one. Like, right off the bat, we have two very distinctly different schools of thought for what marriage even is to begin with, and I don’t want my rights or the rights of anyone else in my community to come up to a coin flip, to be who is in front of you that day making that call. That’s why we need protection. That’s why we need to be included in protections against the broader queer community as well.
Courtney: And we need to start this now. Because we’ve talked about the pronatalist movement and how wild they are, which was really having echoes of all those organizations, all 83 of them that we dug into last year, who were saying, “Oh, well, we can’t pass the Respect for Marriage Act, because then what’ll be next? Platonic marriages?” As if there’s never been a legitimate platonic marriage to exist, ever. All of these extreme religious right-wing organizations are not only saying sex is integral to marriage, but they want the sex to be procreative. They think it needs to be procreative.
Courtney: And a lot of these pronatalist people are really saying some wild things lately. I saw an article the other day entitled, “Elon Musk suggests childless people should lose the right to vote.” Are you kidding me?! Like, they aren’t just coming for platonic marriage. They aren’t just coming for sexless marriage. They are coming for anything that is not straight, cis, procreative, end of story.
Courtney: Although I must say — and I’m going to link — this will be the palette cleanser for you all, I think, because there are a lot of difficult articles and resources in the show notes right now, so right at the very bottom, I’m going to pop this article from Jezebel, because it’s actually kind of funny. Whoever wrote it did a beautiful job. Because this is the first paragraph: “Elon Musk, the right-wing billionaire and deadbeat dad who’s hellbent on destroying Twitter, [laughing] has now outright opposed suffrage for people who don’t have kids.” So we’ll throw that one in, just for a little treat.
Courtney: And then, I don’t know, Royce, is there even a way to share, like, my spreadsheet in the show notes? It’s not a very pretty spreadsheet — don’t judge my spreadsheet — but do we have a way to share that for people who want to pick through their own states or whatnot?
Royce: We could figure something out.
Courtney: Well then, we’ll figure something out! As always, thank you all so much for being here, and we will talk to you all next time. Goodbye!