Defining Marriage is Problematic

iVillage Member
Registered: 04-16-2003
Defining Marriage is Problematic
266
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: 03-23-2003
Tue, 02-17-2004 - 12:30pm

I disagree.


iVillage Member
Registered: 03-26-2003
Tue, 02-17-2004 - 3:50pm
Not to the degree that it is in Denmark is the point I think he was trying to make.

iVillage Member
Registered: 03-26-2003
Tue, 02-17-2004 - 3:51pm
>> And I applaud the Mayor of SF for taking a stand. I just wish more would.

I guess you admire people who commit felonies, and encourage more to do it then?

iVillage Member
Registered: 03-23-2003
Tue, 02-17-2004 - 6:03pm
I think you're taking a very broad view of my statement.

iVillage Member
Registered: 03-26-2003
Tue, 02-17-2004 - 6:53pm
>> I think you're taking a very broad view of my statement. Especially since those 'marriage certificates' would not be considered legal and binding anyway - and the people applying for them know that all too well. Calling this a 'felony' (even if it meets the definition under CA state law) is pretty funny since no one is being hurt in any way.

Oh, don't get me wrong. I agree that it is absurd that this is being referred to as a felony. I think that perhaps the Mayor should receive a slight censure for his actions, but that is about it. He made his statement, but did break the law.

Personally, I think that the superior court will throw out these "marriages" and uphold the state law that makes them illegal.

Again, we have judges legislating from the bench. This is my major problem with the entire thing.

iVillage Member
Registered: 03-23-2003
Tue, 02-17-2004 - 7:13pm

Again, we have judges legislating from the bench. This is my major problem with the entire thing.


I'm not sure that I would call this 'legislating from the bench'...I'd call it interpreting and enforcing the laws, and that's what I thought the courts were for.


iVillage Member
Registered: 03-26-2003
Wed, 02-18-2004 - 9:19am
I agree with you 100%.

The compromise must come by not calling it marriage, and calling it a civil union, but at the same time, incorporating all of the same legal benefits that go along with marriage.

This way, the people who want heterosexual "marriage" defended, get what they are seeking, and the gay community get what they are looking for in equal protection under the law.

iVillage Member
Registered: 03-26-2003
Wed, 02-18-2004 - 9:20am
The law in California forbids same sex marriages, and the text is fairly plain.

I dont see how the court is interpreting this law at all.

iVillage Member
Registered: 04-16-2003
Wed, 02-18-2004 - 11:18am
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I guess this is a matter of opinion. In the US 1 of 2 marriages will end in divorce. Some people don't get married. Same sex unions may prove to be the best marriages of all.

iVillage Member
Registered: 03-23-2003
Wed, 02-18-2004 - 11:31am
The law is being challenged - which is legal.

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