Editors' note: Frequent guest poster and TAVA president Monica Helms explores various definitions of "man" and "woman" and their relationship to the law.
According to the National Gay and Lesbian Task Force map, 40 states have some form of law or amendment that limits marriage to a man and a woman. California recently declared their law unconstitutional, so that leaves 39 others. Out of the remaining states, California and Massachusetts have full marriage equality, four have civil unions and four others plus DC recognize same-sex couples in other ways.
The heart of all of the laws, decisions and amendments we see the statement, "Marriage is between a man and a woman." From the very first time I heard that statement, I had to ask, "What constitutes a 'man' or a 'woman'?" There are no legal definitions for these two words, and, as we will see, the dictionary definitions don't provide much help. No matter how you wish to define man and woman, there will always be exceptions to those definitions, shooting holes into the anti-same-sex laws and amendments.
Before I get started, many transgender and intersex leaders would rather I keep quiet about the lack of definitions for man and woman. Their point is that if the opposition wants to put a legal definition on them, they would more than likely pick the worst possible definition. Their concerns have validity. But, with the changing political climate, we may get to see some of those laws and amendments overturned. A definition becomes less of an issue.
First, let's look at the dictionary definitions of man and woman, taken from the dictionary.com. We already see the laws against same-sex marriage starting to unravel. There are 15 different definitions for man and six for woman. I like #2 for man, "A human regardless of sex or age; a person." If a marriage is suppose to be between a man and a woman, and a man is a "...human regardless of sex..." then how can ban same-"sex" marriage? I doubt bringing this up to a marriage license clerk would change anything, but it sure begs a chance to question the law.
Also notice the definitions from man and woman are strongly attached to the words "male" and "female." For "male," the person has to produce "spermatozoa for fertilizing ova." If a man cannot do this, does it mean he is no longer male, thus no longer a man? You also see on the # 2 definition, "Virile; manly." You have a situation where one word defines another and vice-versa. It doesn't seem right to do that.
If you look at the definition of "female," you also see, "Of or denoting the sex that produces ova or bears young." We can ask the same question we asked for the male definition. "If a woman can no longer produce ova or bear children, is she no longer considered female, thus no longer a woman?" Based on reading this, I come to the conclusion that there is no clear-cut, solid definition for male, female, man or woman in the dictionary. How can they continue to limit marriage to a man and a woman?
But there's more.
Let's talk about the physical differences between men/males and woman/females. It's generally accepted that women have ovaries to produce eggs and breasts to feed the young. They have a vagina that is designed to take the male's penis in order to receive sperm to fertilize the eggs. A male/man has a penis and testes to produce sperm, usually rougher skin, more aggressive personalities, more hair and a different brain structure.
The problem is that humans don't come in neatly arranged physical packages as described above. Physical anomalies abound. According to the Intersex Society of North America, 1 in every 100 births in the world are people whose bodies differ from standard male or female in one form or another. If you look through the various issues listed on that page, you will see that it is a combination of visible and internal differences, to sex chromosome differences.
Portions of the population are born with genitalia that make it difficult for doctors to determine the person's sex. For the longest time, doctors decided what sex to assign the child, but they had a 50/50 chance of being right. Today, the American Pediatric Association has modified that procedure to take into account what the child identifies when they get older and make proper surgical decisions at that time.
Making the wrong decision on what sex a person should grow up to be is drastically demonstrated in the "John/Joan" case of David Reimer. David and his twin brother both had been circumcised after birth, but because the doctor was using an inappropriate procedure, he burned off David's penis. The well-known psychologist, John Money, at Johns Hopkins University suggested they could make David a girl and raise him as one.
This didn't work and David grew up realizing something is wrong with his life. He found out later what the problems stemmed from and lived the rest of his life, until he committed suicide on May 4, 2004. David was 38. This shows that gender identity is in the brain and what parts the body was born with makes no difference. It's another flaw in trying to define man and woman.
One of the chromosome conditions is called Androgen Insensitivity Syndrome, or AIS, which occurs in approximately 1 in 20,000 individuals. Those with AIS are female-bodied individuals who have XY sex chromosome. There are also male-bodied individuals who have XX chromosome, which can be caused by various conditions. In this area, there is a lot of overlapping of issues facing these individuals, which can include Progestin Induced Virilization, Swyer Syndrome, Turner Syndrome, and Partial Androgen Insensitivity Syndrome.
On this page from About.com :Biology for Sex Chromosomes Abnormalities, you can see on the chart six other sex chromosome patterns besides the "normal" XX and XY. If you notice, these are assigned a particular gender, but the physical traits can blur the person's presentation. So what "sex" are they really?
The case of Littleton vs. Prange was a prime example of what can happen when the courts make a decision based on what they think a person has for sex chromosomes. In this well-known case, Christie Lee Littleton's husband of seven years, Jonathan, went into the hospital for what was suppose to be a non-life-threatening issue but ended up dying. After a time of grieving, Littleton decided to sue for wrongful death.
In the trial, the defending lawyers discovered that Littleton had been born with male body parts, and even though she had received all the necessary procedures to be considered a female in the State of Texas, three of the judges assumed she was not really a woman because of her chromosomes. Throughout the entire trial, they never once checked what sex chromosomes Littleton or her husband had. If Christie didn't have XY chromosomes, then the case could have been thrown out.
Because of this decision, in the ten counties that this local district court covers, birth certificates will not be changed for transsexuals who have had SRS. However, a post-op trans woman can marry a non-trans woman or a trans man can marry a non-trans man and it would be considered legal. By doing this, it means the trans person would have to identify as their birth sex for the marriage to be considered legal. I wouldn't consider changing my identity just to get married. Thanks to California, I don't need to.
The next way man and woman can be defined is by what is on their birth certificate. However, there are several ways that this is not 100% possible either. Many Americans cannot get access to a birth certificate because of natural disasters that destroyed the place they were stored at, long before a state could transfer them to computers. Some people in rural areas may not have ever had one issued. Many naturalized citizens cannot get a birth certificate from the country they were born in for various reasons. Also, I have heard that some people were issued a birth certificate that didn't have a sex one it, some because of the genitalia situation.
In 46 states and the District of Columbia, a person can get their birth certificate changed after receiving a form of sex altering surgery. Idaho, Ohio and Tennessee and parts of Texas are the exception. This usually means a Phalloplasty or Metoidioplasty for trans men and Sex Reassignment/Gender Reassignment Surgery for trans women. However, it can also be changed in most of those states when a trans woman gets an orchiectomy, or the trans man gets top surgery or a hysterectomy. If the letter is worded correctly, the state will more than likely change the birth certificate. For more detailed state-by-state information on the procedure in your state or province, visit Dr. Becky Allison's page for instructions.
As we can see, the different ways to try and define man or woman all have flaws and exceptions making it difficult to create a legal definition that would cover every human in the country. If the various states picked one definition to try and keep same-sex people from getting married, they would cause problems for many opposite sex couples and create loopholes that same-sex couples could take advantage of.
This means that we are stuck with laws that are based on undefined terms, keeping same-sex couples from enjoying the same rights as opposite-sex couples. If anyone were to push the issue, then the end result would cause more problems then it would fix. One of the biggest problems would be to invalidate legally married transsexuals, like Christie Lee Littleton, and hundreds of others who stayed married after one person in the marriage changed their sex. We would be damned if we did, but we remain damned because we don't.