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The Providence Journal William O. Beeman: 01:00 AM EST on Friday, February 13, 2004 VALENTINE'S DAY, 2005. Guys! Want to ask your girlfriend to marry you? Get ready for a state-administered physical "equipment" inspection and genetic testing before you can be granted a marriage license. You may not "really" be a male! Legislators scrambling to prohibit "gay marriage" by defining marriage as between "one man and one woman" have no idea what they will be unleashing on the nation. Typical is a bill introduced in Rhode Island by state Rep. Victor Moffitt that he calls the "Marriage Eligibility Act" nullifying any marriage between people of the same sex contracted in any other jurisdiction. But Moffitt and other legislators never answer the question: How will we know if a married couple is really a man and a woman? The answer is: We can't for sure! Legislative attempts to restrict marriage are doomed to be ground to powder through repeated litigation in the courts because there is no clear, scientific and strict definition of "man" and "woman." There are millions of people with ambiguous gender in America -- many of them already married -- who render these absolute categories invalid. In the few legal cases that have emerged in recent years it is clear that courts in different states are defining gender according to completely different criteria. Soon we will not only have different marriage laws in each state, but different gender-definition laws. There are at least three ways one might try to codify gender under law -- biologically, psychologically and culturally. On close inspection, all of them fail. Biologically, one must choose either secondary sexual characteristics -- things like facial hair for men or breast development for women -- or genetic testing as defining markers of gender. Neither method is clear-cut. Some women show male secondary characteristics, and vice versa. Before puberty, things are not necessarily any clearer. A significant proportion of all babies have ambiguous gender development. It has been longstanding -- and now, increasingly, controversial -- medical practice to surgically "reassign" such babies shortly after birth so that they will have only one set of sexual organs. Sometimes doctors guess wrong, and children are "reassigned" and raised as males, when they are genetically female, and vice versa. In one condition, androgen-insensitivity syndrome, genetic males are born with a genetic immunity to androgens, the hormones that produce male sexual characteristics. Though they are genetic males, these children typically grow up looking like females, although they have no internal female organs. Although figures are imprecise, experts in intersexuality, such as Dr. Anne Fausto-Sterling of Brown University, estimate that persons born with some degree of ambiguous gender constitute about 1 percent of the population. This means that there are 2 million Americans who may be biologically ambiguous. Psychologically, another dilemma for those who seek to codify gender is the condition known as gender dysphoria, in which a person feels his or her true gender is the opposite of that in which they were identified at birth. These individuals are often referred to as "transgendered." Some experts estimate as many as 1.2 million Americans are transgendered. Gender dysphoria is a matter of personal identity and has nothing to do with sexual orientation. A male-to-female transgendered person may be attracted to women or to men. Finally, human societies around the world recognize individuals culturally female or culturally male no matter what their physical gender. The "berdache" is an umbrella term used by Europeans to designate a man culturally classified as a woman, and who may be a "wife" to another man. The practice is perhaps best known among the Zui Indians of Arizona, but is widely seen in other tribal groups as well. Outside of North America, the hijra of India, a cultural "third gender," is important in ceremonial life. Hijra are classified as "neither man nor woman." They may marry males or females. These examples of cultural gender ambiguity are only two among dozens throughout the world. If the United States tries to enact a constitutional amendment limiting marriage to one man and one woman, it is only a matter of time before the law falters on one of these rocks of ambiguity. There are already thousands of existing marriages where the wife is a genetic male or the husband is a genetic female. In writing about this in the past, I have been contacted by many of them. One recently wrote from California: "As the daughter of a transgendered parent, I have been making this same argument for the past few years. Because you can't define 'man,' 'woman,' 'male' or 'female,' the 35-year marriage between my parents remains a legal same-sex marriage." Many questions arise that should worry all Americans. In a medical examination, if it is discovered that one marriage partner -- say the husband -- is genetically a female, is the marriage then invalid? When post-operative transgendered persons wed, whom will they be allowed to marry -- persons with the opposite set of chromosomes, or people with the opposite set of genitalia? The courts thus far have no clear answers to these questions. According to Prof. Julie Greenberg of the Thomas Jefferson School of Law in San Diego, the field of gender determination for marriage purposes is in legal chaos. According to Greenberg, in cases decided in the last five years, courts in Texas and Kansas decided that transsexuals remain the sex assigned to them at birth, while courts in Florida, New Jersey, and the District of Columbia have ruled that post-operative transsexuals are legally their self-identified sex. One celebrated case involved the son of American writer Ernest Hemmingway, who was transgendered, and had surgery to render his anatomy female. Before surgery, Gregory Hemingway was married to a woman. She asserted that as his legal wife, she was entitled to inherit part of his estate. Although the case was settled out of court, the heirs and the State of Florida argued that after the sex-change operation, "he" was female, and so the marriage was illegal because Florida prohibits same-sex marriage. In Texas the opposite ruling occurred. A female and a post-operative male-to-female transsexual sued to have their marriage recognized as legal. The state ruled that because one partner was genetically male and the other genetically female, the marriage was legal. In Kansas in another inheritance case, the courts first ruled a marriage of many years illegal because the wife was genetically a male, and not entitled to inherit her husband's estate. On appeal the marriage was declared legal, and finally illegal at the state supreme court. These contrary rulings create interesting legal and practical dilemmas for couples in which one of the partners is transgendered, or intersexed. For example, as the couple travels across state lines from Texas to Florida or Kansas, their legal "heterosexual" marriages transform into illegal same sex unions. So, how can laws such as those proposed by Representative Moffitt be enforced? Some state-administered test would have to be established to determine gender. If the law passes, the next hurdle will be to determine the nature of the test. Then all citizens who wish to marry will have to be subjected to it. The International Olympic committee abandoned such tests years ago, since the Olympic "gender rules" collapsed under the weight of their own contradictory nature and led to protracted lawsuits of the kind cited above. The "marriage laws" will eventually meet the same fate, but meanwhile, fellow citizens, get ready for the inspectors! William O. Beeman teaches anthropology at Brown University. |
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