Male or female, at the bar

Jennifer Finley Boylan (author of the affecting She’s Not There: A Life in Two Genders and I’m Looking Through You: Growing Up Haunted) wrote in the 12 May New York Times about “gay marriage” (that is, marriage between two people of the same sex) — “Is My Marriage Gay?” on the op-ed page — poignantly observing how complex the legal situation of transgendered/transsexual people is in these matters, especially in “marriages where at least one member of the couple has changed genders since the wedding”. (Boylan is a M2F transsexual in just this situation.) She says that

the definition of what makes someone “legally” male or female is part of what makes this issue so unwieldy.

Here’s the problem: is it genitalia that make the difference? or chromosomes? or sex as stated at birth? There are gray areas and subcases within each of these determinations. Unfortunately, different jurisdictions in the U.S. use, or have used, different tests.

Note 1: this posting is about the use of lexical items in legal contexts, so what many people would take to determine male vs. female — the way someone presents themselves, or their beliefs about their identity — is not what’s at issue.

Note 2: I’m not going to delve in any detail into the specific legal cases Boylan mentions, because there isn’t enough in her op-ed piece to evaluate them; I suspect that her column has been edited down and some crucial details have been elided.

To take a situation that at first seems relatively straightforward, consider jurisdictions that fail to recognize sex changes. In these jurisdictions, then, sex at birth / chromosomal sex is your your sex, and determines who you can marry (a M2F transsexual counts as legally “male” and can marry only a woman-born-woman) and what the status of a marriage contracted before a sex change is (a M2F transsexual in a marriage contracted before the medical procedures is still married to a woman after them). (Goodness knows what happens when two people — a M2F transsexual and a woman-born-woman — who both present themselves as women turn up to marry at a courthouse in such a jurisdiction. No doubt there have been test cases.)

Complexities: neither sex at birth nor chromosomal sex nor genital sex is a bright-edge distinction (nor of course is sex as self-presentation). Sex at birth is normally determined by genital sex at birth, but there’s a huge literature on a small but significant collection of cases in which genital sex is unclear or ambiguous. There are also chromosomal anomalies of several sorts, in which the genetic evidence can be at variance with the anatomical evidence (again, there’s a big literature on the subject).

Another odd situation Boylan looks at arises in jurisdictions where having a Y chromosome has been ruled to classify someone as male, at least for the purpose of marriage. Boylan writes about a 1999 ruling in San Antonio, which (note my editorial clarifications, in square brackets)

determined that marriage could be only between people with different [sex] chromosomes. The result, of course, was that lesbian couples in the jurisdiction were then allowed to wed so long as one [and only one] member of the couple had a Y chromosome, which is the case with both transgendered male-to-females and people born with conditions like androgen insensitivity syndrome. This ruling made Texas, paradoxically, one of the first states in which [some] gay marriage was legal.

There’s a lot more, but these situations will illustrate some of the perplexities.

Note, of course, that a significant part of the problem is that every state of the U.S. has its own laws about sex determination, civil marriage, marital status,  divorce, and so on. And they change over time.

There’s an obvious way out, which (as many have noted) would be to make the legal contract of civil marriage generally available, throughout the country, to all pairs of people of sufficient age, not related to one another in certain ways, and not already married, so long as both are legally competent and enter into the contract consensually. This is in some ways a “conservative” position, preserving the legal institution of civil marriage, rather than abandoning it, and also preserving the two-person restriction, rather than allowing for multi-person joint contracts. Still, I think the chances that this would come to pass, ever, are very close to zero.

Instead, the U.S. will muddle through with an odd patchwork of (often incompatible) laws, which throw individual (well-intentioned) people into difficult legal places.

Final note: normally, I allow, indeed welcome, comments on this blog, but my experience is that even the mention of gay / same-sex marriage produces a cascade of opinions on everything having to do with the subject. (Yes, I’ve expressed opinions of my own, but this is, after all, my blog.) So for this one, comments are off.


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