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Anatomy and Same-Sex Marriage

November 6, 2010

In the debate over whether same-sex marriage should be legalized, we rarely hear direct reference to the male and female anatomies. For its proponents same-sex marriage is a civil right that is currently denied to gays and lesbians; for its opponents same-sex marriage is a threat to the traditional purpose of marriage. At best the opponents of same-sex marriage assume rather than justify the importance of anatomy when they talk about “responsible procreation” and its connection to marriage. No matter that procreation is not legally required of married people and for many it is not even an option; and it is certainly not the case that being heterosexual and married makes one a good parent.
Because both sides of the argument often use abstract language to defend their respective positions, it is easy to forget about the physical criteria that make up the bottom line on whether a pair of consenting adults can marry in the United States (except in the states and Washington, DC where same-sex marriage is legal). Indeed, I refer to “same-sex” rather than “gay” marriage because the possibility of legal marriage between two adults ultimately depends on two objective criteria: whether they are related by blood or adoption (the degrees of relation vary state to state), and whether they are of different sexes. It does not matter whether they are both heterosexual. It’s odd to say, but technically gay people can get married; any avid reader of The Stranger’s “Savage Love” knows that Dan Savage, a gay male, was granted permission to obtain a license for marriage to Amy Jenniges, a gay female. And speaking of advice columnists, ask Slate’s Emily Yoffe how many letters she gets from distressed straight women who discover they are the legal wives of gay men.

So strictly speaking, there is no law preventing gay people from getting married; current law rather prevents two adults with matching private parts from getting married. Why focus on this distinction when it is still the gay population against whom the law discriminates since they are the group who wants to be able to marry people of the same sex? The distinction matters because it sheds light on another group who is not fully protected by current marriage laws: people with intersex.

According to the Intersex Society of North America (ISNA), medical experts report that somewhere between 1 out of 1,500 to 1 in 2,000 babies is born with “born so noticeably atypical in terms of genitalia that a specialist in sex differentiation is called in”. The statistics for the occurrence of specific conditions that fall under the term “intersex” can be found here: http://www.isna.org/faq/frequency. While it is true that most people with intersex do identify as either male or female, their bodies do not always fall neatly under one category or the other; therefore they are not guaranteed full protection under the law if their gender becomes a subject of scrutiny in a courtroom. As Alice Dreger writes on ISNA’s website, “in the late-nineteenth century doctors came across many cases of ‘homosexual marriage’ cased by ‘mistaken sex’ (intersex). A few of them quite actively tried to break up those marriages, marriages they considered ‘unnatural.’” While today it is unlikely that anyone is trolling around for potential “homosexual” marriages, cases where an intersex person’s marriage is deemed void or called into question in the process of divorce or other circumstances are not unheard of.

Speculating on the future of the same-sex marriage debate, Dreger discusses the criteria that might be used were the government pressed to give a definitive anatomical order as to who could marry whom: “ a scientific expert here and a medical expert there will offer up one little gene or one type of anatomical tissue that might be used as a male-female sorting mechanism” but “[t]he fact is, every anatomical bit you think of as female (breasts, XX-chromosomes, even ovarian tissue) can be found on someone who has looked and felt like a male since birth.” The alternative would be to handle marriages for intersex individuals on a case-by-case basis, but this would ultimately come down to matching certain anatomical parts with a gender identity ad hoc, over and over again. Such a process would at best be silly and misguided, and at worst an offensive use and colossal waste of time, money and expertise. As ISNA reports, The International Olympic Committee (IOC) has abandoned its process of “gender verification” because it found it could not consistently determine who was male or female.
Advocates of gay rights, at least on the issue of same-sex marriage, would be wise to integrate more advocates of the intersex population into their movement. Together, these groups will have more clout in insisting that the government cannot use “difference in biological sex” (which is precisely what is meant by “one man and one woman”) as a requirement for couples to get married because there are no universally applicable criteria that can be used to determine who of the population is “male” and who is “female”. It is not that scientists have failed to discover these apocryphal criteria, but rather they have determined that the categories in which those criteria would consist, namely “male” and “female”, are not mutually exclusive.

Regardless of one’s cultural or religious values, the absence of two absolute sex categories is a scientific fact, and it is a fact that proponents of same-sex marriage should voice more loudly. Using this line of argument would effectively back opponents of same-sex marriage into a corner and force them to admit that the current anatomical definition of marriage assumes a fallacy: that all humans are either entirely male or entirely female. We should hit our opponents where it hurts, so to speak.

This is not to say that proponents of same-sex marriage should abandon their more typical and perfectly valid arguments, most if not all of which are summarized and drawn to their ultimate conclusions in Perry vs. Schwarzenegger (2010). Indeed, Judge Vaughn Walker’s decision is so comprehensive and thorough that it may have done all the necessary work to get same-sex marriage recognized by state and perhaps federal law. Drawing from expert testimony, scientific research and pure reason, Judge Walker rightly concludes that difference in sex is not a helpful or necessary rule when determining whether two people can get married, and that maintaining such a rule is not in the best interest of the state. If the Ninth Circuit and then the Supreme Court upholds Judge Walker’s decision, the benefits would extend to gay, lesbian, transgender and intersex individuals.

Of course, this is not meant to imply that all intersex initiatives and concerns can be subsumed under the gay rights movement. The two groups and even their sub-groups certainly face their own forms of discrimination and have unique needs for support. The fact remains, however, that the current marriage law fails to address an entire population of American citizens (and, for that matter, the transgender and transsexual population – although when dealing with ultra-conservative opponents, there is always the risk that they will insist on recognizing an individual’s sex at birth and nothing else). The argument for same-sex is worth promoting from the angle of the intersex population in a more public, visible way because it forces opponents of same-sex marriage to confront the dubious criteria that currently dictate who can marry whom.

On the subject of marriage, people with intersex force us to question the factor of biological sex in the context of marriage. Why, exactly, are biological sex and the body parts of which each sex is comprised so very important to the institution of marriage? It seems impossible to make an argument against same-sex marriage if a pair of mismatching bodies, not “morality” or tradition or procreation, are all that is needed for marriage to be legally recognized. This problem of not being able to label everyone as either “male” or “female” is precisely why we never hear opponents of same-sex marriage focus on the “one man and one woman” aspect of traditional marriage. Their arguments always talk of “tradition” and “family values”, but they never directly defend their strictly anatomical law.

Jackie Colvin is a freelance writer living in Chicago.


“How Common Is Intersex?” The Intersex Society of North America. Accessed 13 October 2010

Dreger, Alice “ ‘Same-sex Marriage?’ What Intersex Does to the Gay Marriage Debate” The Intersex Society of North America. 4 December 2004. Accessed 13 October 2010 http://www.isna.org/node/670


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