Australian Judge: Polyamory Not a Sexual Orientation

A woman lost her job after her employer—a social services org run by the Catholic Church—found out that she was polyamorous. She sued, claiming that poly is a sexual orientation and that her firing amounted to illegal discrimination, but the court found against her. Sydney Morning Herald:

Justice Salvatore Vasta dismissed the co-ordinator's appeal on the basis it had no reasonable prospects of success. He found being polyamorous was "sexual behaviour" and not sexual orientation, which involved something far more than how one behaved sexually. "Sexual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms," Justice Vasta said. He rejected the woman's argument that "sexual behaviour" was a subset of sexually orientation saying it could lead to absurd results. "If the contention of the applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation," Justice Vasta said. "If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984."

I kicked off a shitstorm when I wrote this in "Savage Love" back in 2012:

Poly is not a sexual identity, PP, it's not a sexual orientation. It's not something you are, it's something you do. There's no such thing as a person who is "a poly," just as there's no such thing as a person who is "a monogamous."

I devoted an entire followup column to poly folks who feel that polyamory is their sexual orientation. Later I offered this clarification:

If all people are naturally nonmonogamous—a point I've made about 10 million times—then from my perspective, polyamory and monogamy are relationship models, not sexual orientations. (And if poly and monogamy are sexual orientations, Lily, wouldn't going solo have to be considered one, too?) That was my point. Poly can be central to someone's sexual self-conception, and it can be hugely important, but I don't think it's an orientation in the same way that gay, straight, or bisexual are orientations.

Some poly writers were mollified, others were not—but I learned that many, many poly folks (but not all) strongly feel that polyamory is a sexual orientation. The writer and kinkster Jillian Keenan, for her part, has argued that BDSM—sadomasochism—is a sexual orientation. Jesse Bering has argued that zoophilia is not a behavior but a "minority sexual orientation." James Cantor has argued (and has ten year's worth of research backing him up) that paedophilia should be understood as a sexual orientation ("a biologically rooted condition that does not change'), although one that can never be acted on. (Cantor argues that we can better help pedophiles not to act on their desires if we approach it as an orientation—a tragic and troubling one—and not a choice.)

Perhaps we should stop arguing about what is or isn't a sexual orientation and focus instead on what consenting adults do or do not have a right to do in their privacy of their own homes. And the cultural consensus is clearly this: an adult should be free to make whatever sexual choices she likes, and free to enter into as many relationships as she likes (including concurrent ones), so long as her partner(s) are other consenting adults. Children and animals cannot consent so even if we allowed that a tiny percentage of the population is "orientated" toward zoophilia and paedophilia that would not result in the legalization of sex with children or sex with animals.

But we should all be able to agree on this: Your employer should not have the right to fire you for your private and legal sexual conduct or the way you choose to structure your love life.

UPDATE: Michael Carey, a polyamorist writing under a pseudonym at Slate, wrestled with the idea that polyamory is a choice in this piece.