Hilzoy has an eloquent post on the infuriatingly ambiguous legal status of a New Jersey couple wherein husband Donald has now become Denise, thus rendering theirs an illegal same-sex union.
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Transgendered Marriage
29 Apr 2008 11:41 am
Comments (22)
It could get worse. What about a hermaphrodite who has the sex organs of both sexes with 2 X chromosomes and a Y chromosome? Such an individual couldn't legally marry anyone in some states (except possibly another hermaphrodite).
South Park solved this question already. Mr. Garrison had a sex change and became Mrs. Garrison and wanted to enjoy all the fruits of being a woman, including abortion.
Unfortunately, men with plastic vaginas can't have abortions and Mrs. Garrison realizes that he/she is still a male. A male with a plastic beaver and no ovaries.
Mr. Garrison then regrets his operation as it has left him a self mutilated freak.
I knew a married couple where the man was a transgender woman and the woman was a transgender man. They had no trouble getting married, of course, but it struck me as a bit questionable.
There is probably no characteristic more deeply entrenched in popular conception as being binary, with a clear dividing line, as sex. But if you actually look at it, from a scientific, or from a sociological standpoint, it's clear that's not really true. There are all sorts of ways to define sex or gender (I think at least 7 have been categorized), and they don't always line up in a given individual. Yet the validity of same-sex marriage bans rests entirely on that binary presumption. I've always thought that stories like the one Hilzoy describes could serve to put more pressure on same-sex marriage opponents, but I guess the problem is that too many people dismiss people like Donny/Denise as freaks -- "others" whose situation doesn't need to be considered (much as, of course, they did, and do, with gays and lesbians, and do/did with persons of other races, ethnicity, etc.)
I'm very happy for the mentioned couple, and I'm sure it's a harbinger of future political issues and legislation ...
...but to be honest, I'm more concerned about the future of the Greenland and Arctic ice shelves.
I knew a married couple where the man was a transgender woman and the woman was a transgender man. They had no trouble getting married, of course, but it struck me as a bit questionable.
I knew a married couple where the man was a transgender woman and the woman was a transgender man. They had no trouble getting married, of course, but it struck me as a bit questionable.
Mr. Garrison then regrets his operation as it has left him a self mutilated freak. - del
Perhaps I remember the episode wrong, but in the end, didn't Mrs. Garrison realize that s/he was indeed happy with the operation even if s/he couldn't have an abortion?
According to my lawyer, I'm personally safe (married while I was a male, and wife stuck with me.)
Someone would actually have to go challenge my 10yr old marriage, and then they'd be up for a whole lot of fun.
I was legally married, and there's no law that removes that marriage.
Yet the validity of same-sex marriage bans rests entirely on that binary presumption.
No they don't. There are good reasons to oppose same-sex marriage bans, but the supposed ambiguity of sex classifications is not one of them. In the vast majority of cases, sex is "binary," and the tiny number of ambiguous exceptions does not invalidate laws and policies that rest on the distinction between male and female. Hard cases make for bad law.
Hard cases make for bad law - Mixner
I hear this comment a lot, yet at some level it is hard cases that, in testing the limits of a law, ferret out those laws which are bad. In a sense, it is the hard cases that ultimately decide (via the rulings of appellate courts) which laws are actually good and valid laws.
Certainly in the Judeo-Christian tradition that the right is always going on about (or at least in the Judeo part ... the Christian part, when it comes to a hard case, tends to throw up its hands and say "well ... I guess no matter what you will have violated the Law ... but this is inevitable and we all will end up violating the Law so profoundly that redemption is not possible but for the Blood Sacrifice of Christ Jesus"), the Talmud generally works in an a fortiori manner of giving a Mishna, finding the hard cases, refining the Mishnaic law based on those hard cases and then saying "if the law even can apply in hard case [X], how much more does it apply to our every day lives".
The Talmud has served as the basis for jurisprudence for over a thousand years in Jewishdom and throughout myriad persecutions our Law has kept us alive. It is thus hardly bad law. So if you are making this statement then you must hate Israel or something ;)
Yeah, we tend to make some of the laws around marriage seem rather silly. Entropy is fun! :-)
N.J. - home of the banal transgender/homosexual liason story. I don't think it's a coincidence that this is where you had a little dab will do ya, smarmy, closeted governor, and couples like Ollie and Ollie. It's just repressive enough to cause these ruptures, and just open enough to invite these kind of changes.
Although we're beginning to acknowledge someone's gender self-identification as a social nicety, the biology is that a tranny is just a few cuts south of someone with a nose job and semi-annual botox.
The real hard cases will come when functional reproductive plumbing is installed, but the non-transplanted DNA remains the same. Harder still if an X to Y, Y to X therapy is developed.
I suspect most States will come around on gay marriage and render moot the question before these sort of test cases hit the courts.
I hear this comment a lot, yet at some level it is hard cases that, in testing the limits of a law, ferret out those laws which are bad. In a sense, it is the hard cases that ultimately decide (via the rulings of appellate courts) which laws are actually good and valid laws.
No, testing the limits of laws is not the same thing as identifying bad laws. A law against same-sex marriage is not bad simply because there is a tiny number of cases to which it is difficult to apply.
I think you miss my point, Mixner. It's not that a law against same-sex marriage is "difficult to apply." I agree, if that's the issue, one can always write or interpret the law in such a way as to clarify its application.
What the "hard cases" do, as DAS points out, is force you to examine the underlying principles sought to be implemented (or the goals to be advanced) by the law in question. So, take this NJ couple. If you think that their marriage should be deemed invalid as "same-sex", then why? Because both partners have vaginas? Because both have long hair? Because both wear dresses? Could a reasonably intelligent person really think that any of those reasons sound like a good basis to deny 2 people who love each other the right to be married? And far from being some kind of quirk peculiar to this case, doesn't it actually go to the deep truth of the issue?
I actually think that most persons who oppose same-sex marriage do so because they think their god, or their parents, or some other authority figure (maybe they don't even know who) decreed that there are men in this world, and women in this world, and by God they can only marry each other. The binary presumption I referred to is, I contend, absolutely critical. If you start to discuss cases like Donny/Denise, then you force people to start to articulate an actual rationale for their bigotry; and once you can remove the comfort of that "man/woman" categorical dichotomy, I think the absurdity of determining who can love whom by genitalia, or chromosomes, or clothing, or what have you, becomes patent.
What the "hard cases" do, as DAS points out, is force you to examine the underlying principles sought to be implemented (or the goals to be advanced) by the law in question. So, take this NJ couple. If you think that their marriage should be deemed invalid as "same-sex", then why? Because both partners have vaginas? Because both have long hair? Because both wear dresses?
No, because they're of the same sex. I don't understand why you think someone who thinks marriage should be restricted to opposite-sex couples is likely to reconsider that position as a result of finding out that a tiny number of marriages involve persons of indeterminate or ambiguous sex, any more than they would be likely to reconsider their support for, say, public bathrooms segregated by sex, or sports competitions segregated by sex, or gender-based affirmative action, or whatever else it may be, for that reason.
A law [...] is not bad simply because there is a tiny number of cases to which it is difficult to apply. - Mixner
I guess the question is what kind of harm exists because those cases end up being impacted in an undesirable way by the law at hand. And then, should the harm be substantial, what do you do?
Do you throw up your hands and say that sort of thing is inevitable? Do you start to cut down trees in the forest of laws to get at the devil? (yes, that's A Man for All Seasons reference)? Or do you try to refine the law based on the limits of the law?
*
As to the specific case at hand, how do you define "of the same sex" for the ban on marriages? Do you end up having a situation where it becomes illegal for a hermaphrodite to marry because either way it could be defined as being married to one of the same sex? Given the privilages assigned to the married state, isn't that a violation of equal protection?
However, this
I don't understand why you think someone who thinks marriage should be restricted to opposite-sex couples is likely to reconsider that position as a result of finding out that a tiny number of marriages involve persons of indeterminate or ambiguous sex
is certainly true -- not because of your point about unusual cases making bad laws, but because people can still place such marriages in an opposite-sex marriage framework. While many westerners reacted with "how can the mullahs be ok with transsexuality but not with homosexuals" betraying a certain mindset of relative acceptibilities, this mindset is obviously not shared throughout the world. Many homophobic cultures and religious practices are perfectly A-OK with transsexuality: it's a medical problem just like a birth defect -- you are born with a cleft palate? a surgeon can fix that with no moral agonizing. You are born with the wrong genetalia as far as your brain is concerned? nu? a surgeon can fix that too.
The idea is that you would always be married to someone who is the opposite sex of the sex you believe yourself to be. Thus if you identify as female, you can only marry males and visa-versa. Not that I agree with this fix, but it is possible to rewrite a law so that it is more comprehensive rather than just saying "exceptions will always exist so let's not bother".
I guess the question is what kind of harm exists because those cases end up being impacted in an undesirable way by the law at hand.
No, the question is, why do the tiny number of marriages involving persons of ambiguous/indeterminate sex mean a law against same-sex marriage is a bad law, or that the principle of restricting marriage to opposite sex partners is a bad principle? The law/principle may be bad for other reasons, but why is it bad for that reason?
As to the specific case at hand, how do you define "of the same sex" for the ban on marriages?
However you like. For the purpose of the law, the sex of the partners would presumably be established by official documents like birth certficates, naturalization certificates, passports, etc. If you permit transsexuals to change their legal sex for the purposes of marriage, then they would presumably be able to marry persons of the other sex.
Mixner,
These sort of issues are settled state by state.
Kansas and Texas (per this 2002 Saletan piece) don't allow the transgendered to change the sex on their birth certificate.
In those two states (assuming their laws haven't changed in 6 years), since a couple where one has reassigned his gender were born opposite genders, they remain of two genders legally and their marriage is not considered same-sex.
http://www.slate.com/id/2063410/
Well, this thread is obviously dead, I realize, but I have to respond to Mixner's comment, which demonstrates that I have yet to make myself clear here. He/she (sorry, I have no idea what sex Mixner is) says that if you oppose same-sex marriage, the reason to oppose the marriage of the NJ couple is, "because they're of the same sex." (his/her emphasis, apparently to demonstrate how obviousthe point is).
But that is precisely what is contestable in their case. Is Denise a woman for purposes of defining a same-sex marriage? She has a Y chromosome. She doesn't have ovaries. She does have a (surgically constructed) vagina. She does self-identify as a woman. I'm sure there are many other ways in which her "sex" could be deemed contestable.
So the point is, you can't in their case get away with simply saying, "they're of the same sex." Her case, if one is being honest, forces you to say, OK, what is it about two people of the same sex being married that is problematic, in order for us to decide whether the prohibition on same-sex marriage applies to their case.
Mixner's statement that "they're of the same sex" is obviously privileging either self-identification or genital appearance over other definitions of sex. (I'm not meaning to attribute opposition to same-sex marriage to Mixner, by the way.) In other words, if someone says that this NJ couple shouldn't be able to be married because they're of the same sex, then what they must be saying is either that two people who self-identify as the same sex shouldn't be allowed to marry, or that two people who have similar genitalia shouldn't be allowed to marry. And if forced to articulate the principle in those terms, I think for some people the absurdity of the prohibition would become clear.
Now, I'm not naive. This is not going to sway most opponents. Most opponents of same-sex marriage are not open to rational argument on this (and by this, I specifically do not consider "The Bible says it's wrong" to be a rational argument). This is evident by the repeated failure of opponents to offer up any rational basis for the ban. Most will not be willing to confront the implications of Denise honestly, or will dismiss her as a freak unworthy of consideration. But some will, and that's my only point.
Comments closed May 13, 2008.
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Heads in the Sand
I don't understand. Where is the turtle in this story?
Posted by steve duncan | April 29, 2008 12:11 PM