A Union Between One Man and One Woman?

Anyone reading this is probably aware that gay marriage was banned in California by Proposition 8 on the November 2008 ballot. The text of that controversial proposition reads as follows: “SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California. ” (1)

Consequently, California will now issue marriage licenses only to couples that consist of one man and one woman. I'm pretty sure the state is competent to enforce this law, but what I'm not so sure about is the state's ability to define the terms “man” and “woman.”

Hold on, I hear you saying. That's counterintuitive, right? Everyone knows what a man is and what a woman is. A man is a an adult human with a penis, and a woman is an adult human with a vagina, correct? Yes, that is correct . . . if we are willing to define gender by exterior genitalia, which works in most cases. There are, however, a small percentage of people who do not fit as neatly into these categories as we might expect.

One example would be transsexuals, who have had gender reassignment surgery. Their external sexual organs now appear male or female, but they were born a different gender. Are they allowed to marry, and if so, can they marry people of the same gender they are now, or the gender they were when they were born?

Different states have handled this dilemma in different ways. In some states, anyone who is now legally a man can marry a woman and vise versa. In other states, one's legal gender is determined by one's birth certificate. That would allow someone who was born a man, but had gender reassignment surgery to become a woman, to marry only another woman. Sounds like gay marriage to me, but since the state has worked out definitions of men and women (on the basis of birth certificates), it guess it works. Those couples can enjoy the legal benefits of marriage while they reside in the state where they married, regardless of whether they look like a gay couple or not. Outside that state, of course, they won't necessarily be entitled to those benefits, because other states may define “a man” and “a woman” differently.

Barring transsexual people, however, it should be fairly easy to determine gender based on external genitalia, right? Once again we encounter people who are not as easily categorized. Some people are born with some form of intersex, a group of conditions where there is a discrepancy between the external genitals and the internal genitals (the testes and ovaries). (2)

Briefly, humans have 46 chromosomes, which contain all the genes and DNA, the building blocks of the body. The two sex chromosomes determine if a person becomes a boy or a girl. Females normally have two of the same sex chromosomes, written as XX. Males normally have an X and a Y chromosome (written as XY).

People who do not have the standard XX or XY configuration - usually due to hormonal abnormalities in the womb - may have external male genitals, but the chromosomes of a female. This condition is called, “46, XX Intersex.” Similarly, someone with “46, XY Intersex,” has female genitalia, but male chromosomes. (2)

One additional condition, “True Gonadal Intersex,” affects people who have both ovarian and testicular tissue. The external genitals may be ambiguous or may appear to be female or male. Additionally, “Complex or Undetermined Intersex” results from one of many chromosome configurations, including “45, XO” (only one X chromosome), and “47, XXY” or “47, XXX” -- these cases have an extra sex chromosome, either an X or a Y. (2)

Often children born with these conditions are operated on as a matter of course to make them appear unambiguously male or female. This can result, however, in disorientation and emotional difficulties later in life, if the initial gender selection was incorrect. They often seek gender reassignment surgery again later in life to bring their self-identity and their physical appearance into agreement. (3) How do we determine who – if anyone – these individuals are allowed to marry?

How many people will be affected by laws that define marriage as between one man and one woman? It is estimated that between 1.7 and 4% of the population is born with intersex conditions. Various estimates of the gay population range from 1% to 10%. (4) If the population of California is 36,457,549 (5), then that percentage refers to at least a million Californians. That may be statistically insignificant, but it's certainly important to the people it describes.

I am making this argument in all earnestness. The truth is, however, that in addition to wanting you to consider the impact of Prop. 8 and other laws like it on specific people, I also want you to take a minute and consider in the abstract the arguments against defining marriage as a union of one man and one woman. Don't allow yourself to simply succumb to a knee-jerk reaction – or even a well-thought-out rationalization – about homosexuality. Consider it – at least for a time - from a detached, logical perspective.

Are you positive you know the definitions of man and woman? Have you really thought about why gay marriage would be bad for society, or have you just accepted the popular arguments of “It's always been that way,” and “It's against God,” in the same way that gay marriage activists have labeled everyone in favor of Prop 8 as bigots, haters, and religious zealots? Can you try to open your mind and see the other side of the equation as well as you expect everyone can already see your side? As flawed and sinful as the rest of us, gay people, transgendered people and intersexed people are made in God's image and are God's children. I believe it is for God to judge them, not Man, and I'm not willing to codify into law any opinions about God's will that don't coincide with the Constitution. And does it ever seem to you the slightest bit of hubris to assume you know God's law and God's plan?

Now turn to the issues I raised earlier, because I am still quite serious about them. Are minorities protected in America, regardless of how small they are, and whether they are based on skin color, birth defect or sexual orientation? Should we insist that everyone who applies for a marriage license get a chromosome test, and if so, to what end?

It's easy to say gay people shouldn't get married; it's hard to figure out who legally does have the right to get married and why. Does it matter whether a minority offends you, or does everyone get equal treatment under the law? Should we treat people of different religions differently that we treat everyone else? And who is “everyone else” anyway?

It's my belief that in America, everyone is protected equally under the law: people of all races, religions, creeds, genders, countries of origin, or sexual orientation. People are entitled to their religious beliefs, but when it comes to the law, we should all be treated equally.

ENDNOTES

1. California General Election Official Voter Information Guide - http://www.voterguide.sos.ca.gov/title-sum/prop8-title-sum.htm

2. Medline Plus, Medical Encyclopedia, a service of the US Library of Medicine, and the National Institutes of Health - http://www.nlm.nih.gov/medlineplus/ency/article/001669.htm

3. "Who Will Make Room for the Intersexed?” AMERICAN JOURNAL OF LAW AND MEDICINE, Volume 30, Number 1: Pages 41-68,Summer 2004 - http://www.cirp.org/library/legal/USA/haas1/
4. “Size matters: a comparison of anti- and pro-gay organizations' estimates of the size of the gay population,” PubMed.gov, a service of the US Library of Medicine, and the National Institutes of Health - http://www.ncbi.nlm.nih.gov/pubmed/12066990?dopt=Abstract
5. US Census Bureau State & County QuickFacts, 2006 estimate - http://quickfacts.census.gov/qfd/states/06000.html