May 12, 2009
I'm nobody -- who are you?
I've never understood the impulse to interfere with consenting adults' ability to marry one another. Just do not get it. So I loved this op-ed in this morning's New York Times:
I've been legally female since 2002, although the definition of what makes someone "legally" male or female is part of what makes this issue so unwieldy. How do we define legal gender? By chromosomes? By genitalia? By spirit? By whether one asks directions when lost?We accept as a basic truth the idea that everyone has the right to marry somebody. Just as fundamental is the belief that no couple should be divorced against their will.
For our part, Deirdre and I remain legally married, even though we're both legally female. If we had divorced last month, before Governor Baldacci's signature, I would have been allowed on the following day to marry a man only. There are states, however, that do not recognize sex changes. If I were to attempt to remarry in Ohio, for instance, I would be allowed to wed a woman only.
Gender involves a lot of gray area. And efforts to legislate a binary truth upon the wide spectrum of gender have proven only how elusive sexual identity can be. The case of J'noel Gardiner, in Kansas, provides a telling example. Ms. Gardiner, a postoperative transsexual woman, married her husband, Marshall Gardiner, in 1998. When he died in 1999, she was denied her half of his $2.5 million estate by the Kansas Supreme Court on the ground that her marriage was invalid. Thus in Kansas, any transgendered person who is anatomically female is now allowed to marry only another woman.
Similar rulings have left couples in similar situations in Florida, Ohio and Texas. A 1999 ruling in San Antonio, in Littleton v. Prange, determined that marriage could be only between people with different chromosomes. The result, of course, was that lesbian couples in that jurisdiction were then allowed to wed as long as 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 gay marriage was legal.
A lawyer for the transgendered plaintiff in the Littleton case noted the absurdity of the country's gender laws as they pertain to marriage: "Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male."
Legal scholars can (and have) devoted themselves to the ultimately frustrating task of defining "male" and "female" as entities fixed and unmoving. A better use of their time, however, might be to focus on accepting the elusiveness of gender--and to celebrate it. Whether a marriage like mine is a same-sex marriage or some other kind is hardly the point. What matters is that my spouse and I love each other, and that our legal union has been a good thing--for us, for our children and for our community.
The last sentence says it all. As with so many things, it really should be that simple--but human beings have a way of complicating things into impossibility.
Two quick things: 1) If you have not seen Transamerica, do. It's amazing. 2) Here's the rest of the title poem:
I'm nobody! Who are you?
Are you nobody, too?
Then there's a pair of us--don't tell!
They'd banish us, you know.
How dreary to be somebody!
How public, like a frog
To tell your name the livelong day
To an admiring bog!
Love the sound of Dickinson in the morning.
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Comments:
But legally speaking, marriage isn't a right--it's a privilege licensed by the state. As a privilege, it's restricted--not all consenting adults can marry one another. I can't marry my sister or my mother, even if we both consent. Until marriage's legal definition changes (from a licensed privilege to a "right"), the argument that denying marriage to certain couples deprives them of their rights will have no force.
Funky -- You'll notice I do not use the language of rights in my post. The columnist does, but I deliberately did not. I think it's a tactical language of activism--and I agree that this language needs to be used in order to make the case for gay marriage--but my description of my own feelings on the subject was meant to be far more visceral and personal. That may not ultimately make much sense -- but I was trying to honor the fact that we tend not to think about things like love and marriage in a primarily legalistic, rights-oriented way. We wind up thinking about them in those terms--but only because we have to.
Funky, I'm not sure your semantic distinction is that useful. Marriage is indeed a license issued by the state, but the idea that it is a privilege more or less equivalent to operating a motor vehicle is misleading. The mere fact that it is not absolute (you can't marry your sister) does not distinguish it from a right (you can't shout fire in a movie theater, either). The fact that the supreme courts of several states have decided that marriage is effectively a right suggests that the distinction is rather muddy.
Quite so, Peter. But what's more to the point here is the right to equal treatment under the law. Operating a beauty salon might be a privilege and not a right in the sense Funky Ph.D. has in mind, but if licenses were routinely denied to, say, black applicants, for no more compelling reason than that they were black, that would indeed be depriving them of their rights. Not the (arguably nonexistent) right to operate a beauty salon, but the right to equal treatment under the law. The courts are finally starting to see this. Hooray for Massachusetts! Hooray for Iowa!
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