ARE THE CATEGORIES "man" and "woman" so obviously clear that they need no further explanation?
Legislators throughout the nation trying to prevent the recognition of "gay marriage" contracted in other states obviously think so. They have introduced legislation that would grant official recognition only to marriages between "a man and a woman." Legislation embodying this language has already passed in South Dakota and Utah and may become law in 17 other states, including Maryland, in the next few months.
Maryland's bill, introduced by Del. Emmett C. Burns Jr., the founding pastor of Rising Sun Baptist Church in Woodlawn, says same sex marriages are "against the public policy of this State." If enacted, "only a marriage between a man and a woman" would be valid in Maryland and same-sex marriages that take place in other states or foreign countries would not be recognized.
Perhaps Mr. Burns and the other legislators who are pushing these bills don't realize it, but their passage would unwittingly nullify or prevent millions of supposedly heterosexual marriages.
Why? Because the marriage partners will not meet the medical definition of being "a man and a woman." To make matters worse, most of these couples will not know that they are illegally married.
Between 3 million and 10 million Americans are neither male nor female at birth. Additionally, as adults they may be genetically of the opposite gender from that which they and their parents believe them to be.
The medical term for persons of ambiguous gender is "intersexual." Estimates of the numbers of persons who may be born intersexual ranges from 1 percent to 4 percent of all children born today, according to Dr. Anne Fausto-Sterling of the Division of Biology and Medicine at Brown University.
The difficulty in determining clear-cut specification of gender arises because there are at least three ways to define it. Two are biological and one is cultural.
The first biological definition defines gender in terms of chromosomes. Males have an X and a Y chromosome. Females have two X chromosomes. The second biological definition assigns gender in terms of male and female genitalia.
In the third, "cultural" definition, males are people who lookand act "male," and females are people who look and act "female." Americans generally want everyone to fit the third, cultural definition, even when people have biological characteristics that are not strictly in accord with a two-gender system.
One cause of intersexuality seems to be the posession of an abnormal number of chromosomes only one or more than two. A second cause stems from the fact that all humans, no matter what their chromosomal makeup, have the biological capacity to develop either male or female genitalia and secondary sexual characteristics while in the womb. Developmentally, some babies are born with male or female chromosomal makeup and with both male and female genitalia, or with some of the genitalia of the opposite chromosomal sex.
Dr. Fausto-Sterling points out that there is a smooth continuum between 100 percent biologically male and 100 percent biologically female with many possibilities in between. She calls those with both testes and ovaries "herms." Those with testes and some female genitalia but no ovaries are "merms." Those with ovaries and some male genitalia but no testes are "ferms." This gives the possibility of five rough biological groupings: male, merm, herm, ferm and female.
Most intersexual Americans are unaware of their true biological gender because under current medical practice, physicians reassign the gender of intersexual infants at birth. Such infants are surgically altered and given hormonal treatments so that they will fit into one of the two "cultural" categories male or female. The test is usually not chromosomal, but rather based on the "viability" of the genitalia to eventually appear normal.
Often the parents are not fully informed about what is happening to their children.
Dr. Fausto-Sterling calls this medical reassignment a "surgical shoehorn" designed to force intersexed infants into rigid cultural categories that have little to do with biological reality.
As a result, there are perhaps millions of XX males and XY females living in the United States today. These are cultural males with male genitalia who are genetically female, and cultural females with female genitalia who are genetically male. The film star Jamie Lee Curtis is one well-known individual who is genetically male, but phenotypically female.
The current legislative issue in South Dakota, California, and Utah and other states has arisen because a current court test of marriage laws in Hawaii seems likely to result in recognition of same-sex marriage at sometime in the future. Because marriages in one state are generally held to be legal in others, the Hawaii action would effectively legalize same-sex marriage throughout the nation.
The legislators have obviously not consulted with scientists in their zeal to eliminate "gay marriage." Legislation preventing recognition of any marriage except between a "man" and a "woman" will clearly have some surprising unintended consequences. In states with such laws it may be necessary to have a "genetic" test such as is currently performed on Olympic athletes before a marriage license can be issued. Even so, what does an XX male or an XY female do about marriage? This legislation might effectively prevent such people from ever being legally married in their state of residence.
Some legislators have also tried to preclude post-operative transsexuals from marrying by requiring that marriage partners be "potentially fertile." This, of course, would exclude not only the transsexuals, but also all intersexual individuals. It would also exclude women who have undergone hysterectomies or gone through menopause, and men who became infertile as a result of disease, such as having contracted mumps as adults.
This attempt to deny marriage to all but culturally defined males and females through legislating science is eventually doomed to failure because a two-category male/female system can never encompass the variety of human gender construction. A large number of destructive and expensive court cases will arise if such restrictive and ill-conceived marriage laws are passed. It would seem far more reasonable to allow any two persons wishing to ratify a personal relationship to do so without having to satisfy a standard that has little relationship to reality.
William O. Beeman is an associate professor of anthropology at Brown University.
Pub Date: 3/17/96