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Sexual minorities are at particular risk in legal settings. Like any other group that differs markedly from a distinct majority, sex and gender minorities are already in a socially disadvantaged position relative to those in the majority who determine the social norm. With sexuality, whatever is the current social norm often passes as the absolute or morally correct normalcy. The sense of moral taint or even revulsion that can inflect any variation from conventional sexualities or gender roles means that being seen as a “pervert” can be the kiss of death in the courtroom.
Many of the laws used to prosecute sex and gender minorities are selectively enforced and would not be applied to cisgendered (non-transgendered people whose birth sex matches their own internal sense of gender) heterosexuals in the same way. Even though it has been more than ten years since the historic Lawrence vs. Texas ruling in which the US Supreme Court overturned the “Homosexual Conduct” law (that criminalized consensual sodomy between adults in private but was only enforced against same-sex partners), polyamorists and other sexual minorities still face a distinct disadvantage when interacting with the legal system. This blog summarizes the five most common legal issues affecting polys and other sex and gender minorities.
1. Custody. Sexual or gender minority parents are particularly vulnerable in court proceedings, and the US has a long history of removing children from parents deemed “morally unsound.” Until this century gay parents routinely lost their children in custody litigation, though that is beginning to change in many locations. While there have been fewer cases prosecuting plural parenting than gay parenting, poly parents also generally lose custody of their children in custody battles. Because polyamory is relatively unknown, it usually takes a divorce or incident that draws a poly family to authorities’ attention. Once they are under surveillance they routinely lose custody of their children. In some cases polys will reconfigure their living situations (move out or have partners move out) so that they appear to be single or monogamous, and that has often proven effective in gaining the return of the children.
2. Morality Clause. Some corporations and organizations have morality clauses in their employment contracts and can fire those employees who violate the official morality. Sexual minorities are at unique risk of firing for violating moral clauses because any of their relationships – even a monogamous, married, consensual adult relationship that happens to be between people of the same sex or gender – could be cast as immoral, and thus they can be fired for loving the “wrong” person and have no legal recourse. Several polys who participated in my study reported losing their jobs when they were outed as poly at work.
3. Adultery/Bigamy. Polyamorists and other nonmonogamists who are legally married can be accused of adultery and even bigamy. Virtually no one is prosecuted for adultery unless their spouse brings the case: Very few jurisdictions have the resources to prosecute cheaters because there are simply too many of them, and some officials would have to prosecute themselves/each other. Adultery is generally viewed as a private matter between the people involved -- until it involves an elected official or polyamory. Once polys are outed to authorities for any reason, they are often threatened with prosecution for adultery, even though the threat is carried out less frequently than it is made.
4. Housing. In some jurisdictions, landlords can legally limit the number of unrelated adults living in a household. Generally these laws have been used against immigrants to prohibit “too many” (a number which varies by state, county, and who is counting) newly arrived people to share a single dwelling. These regulations can also limit where polyamorous families can reside, and families that expand risk eviction if landlords decide they have too many adults who are not legally related sharing the same space. In markets with expensive and scarce housing, this can be especially disadvantageous to people with few financial resources.
5. Importance of Location. Married cisgendered heterosexuals are generally married regardless of their state of residence. People in same-sex relationships can change relational status simply by crossing state lines. People who are family members in one state can be abruptly barred from family rights in another, as happened to Janice Langbehn and Lisa Pond when they were traveling in Florida with their three children. Pond collapsed and the hospital prohibited Langbehn and the children from seeing Pond as she lay dying alone, even though Langbehn had legal documentation establishing her as Pond’s durable power of attorney. Sex and gender minorities are subject to regulations that change their relationship as they travel, making the law capricious for them in a way that it is not for cisgendered heterosexuals.
A Note on How Polys Differ from Other Sexual Minorities
Just as sexual minorities are selectively prosecuted for actions that conventional heterosexuals do with impunity, people of color are routinely selectively prosecuted for things white people get away all the time. When the disadvantage of being a person of color in a racist society intersects with the difficulties associated with being a sexual minority, it can magnify their troubles significantly. As I discussed in a previous post on diversity, the vast majority of people who identify as poly and participate in research are white, middle or upper middle-class people who are highly educated. Taken as a whole, this group is able to hire lawyers, own their own homes, and enjoy (even unknowingly) the benefits of race and class privilege that buffer them from many of the legal issues listed above. Other sexual and gender minorities tend to have greater diversity, with more people of color and working class folks who must rely on public defenders or simply go without representation if they are embroiled in litigation.
