Defining Marriage is Problematic

iVillage Member
Registered: 04-16-2003
Defining Marriage is Problematic
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Sat, 02-07-2004 - 10:49am
Laws Can't Define 'Man' or 'Woman,' So How Can They Ban Gay Marriage?

Commentary, William O. Beeman,

Pacific News Service, Feb 05, 2004

Editor's Note: Legislators' attempts to codify marriage as "between a man and a woman" won't work, writes PNS contributor William O. Beeman. Like it or not, there is no single, clear biological, psychological or cultural definition of "male" and "female." Already, courts are faltering on the ambiguity of gender.

The Massachusetts Supreme Court advisory, stating that nothing short of marriage for same-sex couples would satisfy the state constitution, has sent legislators throughout the nation as well as President Bush scrambling to define marriage as between "one man and one woman."

These legislative attempts are doomed, because there is no clear, scientific and strict definition of "man" and "woman." There are millions of people with ambiguous gender -- many of them already married -- who render these absolute categories invalid.

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 approximately 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 that their true gender is the opposite of that in which they were born. 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 who are culturally female or culturally male no matter what their physical gender. The "berdache" is an umbrella term used by Europeans to designate a man who is culturally classified as a woman, and who may be a "wife" to another man. The practice is perhaps best known among the Zuñi 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," but they may marry males. These examples of cultural gender ambiguity are only two among dozens throughout the world.

If the United States tries to enact a national law defining gender conditions for marriage, it is only a matter of time before the law falters on one of these rocks of ambiguity. There are undoubtedly existing marriages where the wife is a genetic male or the husband is a genetic female. In a medical examination, if it is determined that this genetic fact is discovered, is the marriage then voided? 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?

There has already been one Texas decision where two "women" were allowed to marry, because one of them had originally been a male. We can expect far more stories like this should this legislative circus proceed.

PNS contributor William O. Beeman (William_beeman@brown.edu) teaches anthropology at Brown University.

http://news.pacificnews.org/news/view_article.html?article_id=d3362852002e314524ffb9ac8eac3c91

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iVillage Member
Registered: 04-16-2003
Tue, 02-10-2004 - 11:06am
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Years ago I learned about the ambiguity of sexual identity, because I happened to take a biology class that included the endocrine system. What's happening is that we are learning how complex the human system is. I have no idea how many people this would include, but the fact that other cultures recognizes the situation says it's just hidden in the US.

iVillage Member
Registered: 04-16-2003
Tue, 02-10-2004 - 11:15am
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I don't think he is ignorant of the constitution, but he certainly intends to test, all the way to the Supreme Court, any decision or law he disagrees with. For example, the White House refused to turn over the files on the energy hearings that the Congress asked for. When the court ruled against him, he appealed it to the SC. Here in CO, where it is legal to have marijuana for medical purposes, the Feds arrested a man. This is also being appealed to the Supreme Court. The question here tests a state's right to have laws that differ from US laws. Then what about the case in FL where his brother had the legislature overrule a judges decision.

iVillage Member
Registered: 04-16-2003
Tue, 02-10-2004 - 11:20am
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If you are referring to the MA case, the judge just referred the case back to the state legislature and asked them to reconsider the issue. They did, thus the recent headlines. I am much more interested in the questions of legality than I am about the issue at hand. The overriding question is a matter of state's rights.

iVillage Member
Registered: 03-26-2003
Tue, 02-10-2004 - 11:36am
Yes, but then it also applies to federal laws.

If the state recognizes a same sex marriage, what do you do on your Federal Income tax forms, since they do not recognize this.

This will be interesting.

iVillage Member
Registered: 03-26-2003
Tue, 02-10-2004 - 11:39am
>> Then what about the case in FL where his brother had the legislature overrule a judges decision.

If you are referring to the election, this was done because the Florida Court of Appeals tried to change the election laws after the election took place...this is the only reason that the US Supreme Court got involved. If the Florida court did not overstep their boundaries, then the Supreme Court would probably have stayed out of it.

iVillage Member
Registered: 03-18-2000
Tue, 02-10-2004 - 2:51pm
I believe the case being refered to is the case of the woman that's in a coma, /or whatever, & the husband & parents were in disagreement. A court agreed with the DH & ok's feeding tubes remove then the parents went to Gov.

 


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iVillage Member
Registered: 03-26-2003
Tue, 02-10-2004 - 4:05pm
Oh...that travesty.

I guess that is what happens when you (being the couple) do not have affairs in order. The government steps in to probate and everything becomes way too messy. It really is a shame, and to me, there is no right thing to do...either way, someone loses, and in both instances it seems to be Terry Schiavo (I think that is her name)

iVillage Member
Registered: 04-16-2003
Wed, 02-11-2004 - 10:56am
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It seems so simple, but there are many facets that are going to cause conflicts. So yes, it is going to be interesting for several years.

iVillage Member
Registered: 04-16-2003
Wed, 02-11-2004 - 10:58am
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No, I was referring to the "brain dead case". Sorry can't remember the woman's name.

iVillage Member
Registered: 03-26-2003
Wed, 02-11-2004 - 1:15pm
The easiest way around it is to call it a legal union and allow the same benefits that married men and women are accustomed to, including for taxes and medical benefits, etc.

That way, both parties will be at least somewhat pleased, and nobody really gets hurt.

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