A real live, legally valid same-sex marriage (?)
slevinson at MAIL.LAW.UTEXAS.EDU
Wed Nov 11 10:02:30 PST 1998
I don't think I have any argument at all with Jim. He is clearly right
that even sexual (as distinguished from gender) identity is far, far more
complicated that we have been led to believe by a wholly inaccurate notion
that there are only two sexes that can always clearly be distinguished by
both chromosomes and genitalia. The reason for my emphasis on
transgendered persons is simply that this is where a lot of litigation is
in fact occurring, so that lawyers, whatever their wishes, can't avoid
confronting real live, non-hypothetical, situations. Hermaphrodites are
also real and alive, but I'm not aware (perhaps it is my own ignorance) of
any litigation in which hermaphoridism is the central issue.
At 09:56 PM 11/10/1998 -0500, you wrote:
>One of the difficulties I have with the discussion is that there seems to
be a premise that someone is either a male, a female, an ex-male (now
female), or an ex-female (now male). This omits eunuchs, hermaphrodites,
and several others the names for which escape me at the moment.
>I think it improper to marginalize the "few" who are unfortunately born
into a set of circumstances that most, if not all, others would care not to
have. Modern medicine permits correction of some of these situations, but
>Thus, it is possible that the person whom we think is a female is actually
an ex-hermaphrodite, with the change having been made at or shortly after
birth. Similarly, a male could be an ex-hermaphrodite.
>Treating these people as "freaks of nature" or circus sideshow
participants is demeaning to them, particularly because they are as they
are through no fault of their own. Even the person who discovers at some
later age that they are a male trapped inside a female body or vice versa
did not create the situation. Often times the person's physical
characteristics reflect some blending of gender-linked features.
>It would indeed be inefficient and perhaps pointless to have dozens of
rest rooms (eg. "Women (Who Don't Mind Being Seen by Ex-Hermaphrodites who
are Women)" next to "Males Who are Ex-Hermaphrodites" next to "Eunuchs"
next to..... ) Since I don't necessarily know (and almost certainly don't
know) that a particular person who appears to be of a given gender has
always been of that gender or "changed" at some point, how can we
rationally make distinctions? Some sort of identity card to be swiped
through a reading device at the rest room door? (Note that transvestites
pose a different situation, namely, one in which a person who is of a
gender makes himself or herself appear to be of the other, which indeed
would be disconcerting to many people).
>Thus, if one wants to distinguish between males and females who were made
that way at or shortly after birth from those who were changed later in
life, one needs some device to provide the distinction and nothing short of
a medical certificate or identity card does the trick. If one wants to deny
classification as "female" to anyone not born female, one generates an
increase in the number of "unprotected" individuals. I find that
undesirable, troubling, theologically distressing, and likely to cause even
more difficulties in terms of privacy invasions and denial of individuality.
>Whether it is marriage, the adoption of children, the use of public rest
rooms, membership in gender-selected groups, or any other aspect of human
life, people deserve better.
>Villanova University School of Law
>Villanova, PA 19085
>maule at law.vill.edu
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