Marriage: Gender and Conjoined Twins

Francisco Martin ricenter at igc.org
Mon Mar 15 18:03:11 PST 2004


Prof. Sisk wrote in  relevant part:

>I don't references to
> transgender or inoperable conjoined twins are at all telling on the
question
> of whether marriage should be re-defined.  As a crucial preliminary
matter,
> I don't think it much advances any argument to point to the outlier kinds
of
> matter and then suggest that a legal regime should be constructed around
it.
> Only by starting from the extreme scenario or the unusual exception would
> one be able to suggest that gender is a biologically faulty concept, when
of
> course it is a fundamental biological concept and integral to the
> perpetuation of the species.  Without gender, there is no reproduction; it
> is as simple and basic as that. 

COMMENT:  Transgendered (or intersexed) persons or conjoined twins are only
"outlier kinds of matter" because legislation has failed to take into
account these purportedly "marginal" cases.  But, such "marginal cases" are
biological facts having tremendous moral, political, and economic
consequences not only on them but their family members.  (By the way,
gender is not integral to the perpetuation of the species.)   Perhaps hard
cases sometimes make bad law, but that is not doing justice to these
people, and to deny them the right to marriage undercuts their humanity. 

Prof. Sisk continues:
> The institution of marriage is founded upon that simple biological fact --
> that a heterosexual union is pregnant (pun intended) with the possibility
of
> creating life.  Marriage is not (or at least has not been), as my
colleague
> Teresa Collett recently described it, a mere "love license."  The state
has
> no business formalizing or recognizing deep friendships, loving adult
> relationships, etc.  Marriage instead has been child-oriented, based upon
> the general proposition that a man and a woman joined together in a sexual
> union are likely to produce children.  Reinventing marriage as an
> affirmation of adult affections turns it away from that child-orientation.

COMMENT:  I don't see how any of these points distinguish gay marriage. 
This has been discussed at depth before.  Gay couples bear and raise
children.  Heterosexual married couples often do not wish to have children.

Prof. Sisk continues:
> Having said that, herewith some thoughts about the two problems:  For the
> transgender person, the biological answer is simple -- the gender of the
> birth certificate, which in turn should reflect the gender that genetics
> confirm -- should control.  While unusual cases do arise -- very rarely --
> in which a newborn appears to exhibit physical evidences of both genders,
as
> I understand it a genetic examination should confirm the answer.

COMMENT:  It appears that you don't know what transgendered or intersexed
persons are.  Birth certificates often are irrelevant because "opposite
gendered" charateristics develop later.  And, genetic examinations are not
the only way of determining gender.

Prof. Sisk continues:
> As for the conjoined twins example, all I can say is:  Come on!  Surely no
> one would suggest that any legal rule -- whether it is ownership of
> property, eligibility for governmental benefits, limitations on search and
> seizure for criminal purposes, etc., much less marriage, should turn on
this
> question.

COMMENT:  I don't understand your point.  Are you saying that conjoined
twins should not be able to marry?

Prof. Sisk continues:
> Even if one disagrees on these particular point, I still insist that
however
> one comes out on the application of the law to the idiosyncratic, such as
> the conjoined twins case, tells us little or nothing about the larger
> issues.

COMMENT:  Conjoined twins and transgendered (or intersexed) persons reveal
the larger issue of  whether individuals born into a certain physiological
state should be allowed to marry.  We allow mentally-retarded persons to
marry, and most of us agree that is good.  To deny persons -- such as the
mentally retarded, transgendered persons, or conjoined twins -- such
fundamental rights says something very bad about our society.  If that is
"idiosyncratic," so be it.

Francisco Forrest Martin




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