Reflecting on My Marriage Nearly a year ago, I married the love of my life in Windsor, Ontario.[1] I had been in a “traditional” marriage before, playing the traditional role of husband, father, and breadwinner. This new union, however, would be anything but that; no husband or wife (or facsimile thereof), no defined roles or dominant positions, no expectations regarding who does what.[2] While we fully understood and appreciated the feminist objections to the institution of marriage -- principally its historical function as a vehicle to perpetuate the subordination of women -- we nevertheless made a conscious decision to solemnize our commitment to one another through that very institution, transforming it in the process. By being legally married (as distinguished from having a commitment ceremony, being civilly united, domestically partnered, etc.), we unambiguously declared the nature of our relationship using the vernacular of our society; we bound ourselves together in the same ways – emotionally, physically, legally, financially – and intending the same consequences that all other married couples do. Our marriage was not intended to be a political statement (although it has been celebrated as such), but instead a true expression of who we are to each other. [1] We choose to marry in Windsor because Canadian law permits same-sex marriage, and our marriage license application indicated we are both “F”, just as our passports and drivers licenses do. [2] In our marriage, allocation of responsibilities is based on our complementary personal likes and dislikes, rather than some preconceived notion of who is “supposed to” perform some task. For example, I admit to a disinclination to manual labor that, luckily, my spouse does not share. She, on the other hand, has an aversion to doing dishes, which I have managed to overcome.
(I apologize that the first two footnote references on the extended part don't function correctly (they refer to the previous footnote); the rest of them function).
We know that our marriage is, on its face, legally invalid under federal law[1] and in our home state, Michigan, where voters amended the state constitution so that only a union between one man and one woman will be recognized by the state as a marriage “for any purpose.” There are similar non-recognition laws in many of the states here in the United States, although there are bright spots such as Massachusetts, Vermont and New Jersey. On an abstract level, we are deeply saddened and dismayed by that state of affairs.
The practical consequences of anti-gay marriage legislation had not especially concerned us, however, until one day in July, when we were hiking in the Shenandoah National Park in Virginia. During a steep uphill climb, I became very short of breath and felt pain in my arm. With my spouse at my side, I rested and tried not to panic as I contemplated whether I was having a heart attack. And then it hit us – what if I needed urgent medical care? Would they recognize her as my next of kin and let her participate in decisions about my treatment? Based on our impressions of the local culture and Virginia’s legal history, we were extremely pessimistic. Thankfully, we never had to find out. But as we crossed state lines on our way home, we contemplated the various state marriage laws that had the potential to define our relationship – not as between ourselves, but for others who might at any given moment have power over our lives.
What made the conversation more intriguing was that, as a transgendered person, I am not necessarily deemed to be female under state law, and therefore not necessarily in a same-sex marriage. In fact, it is highly likely that I would instead be deemed a male in a judicial proceeding in many states, especially given that I never petitioned to change my birth certificate[2]. This would certainly be the result in Texas,[3] Kansas,[4] Florida,[5] and Ohio.[6] Accordingly, our marriage may be valid in nearly every state, despite all appearances to the contrary. Of course, this is not the sort of thing that could be debated and resolved while being wheeled into an emergency room, making the potential denial of our rights as spouses even more frustrating.
The irony of this legal situation is that the same courts that would deem me to be male, and consequently legally married, would do so based on precedents that were designed to prohibit same-sex marriages.[7] What is it about same-sex marriage that the fear of it produces such a facially absurd result? One principal argument is simply that same-sex marriage isn’t marriage in the first place; it’s not real. According to one court, one of the principal purposes of marriage is to “encourage the creation of stable relationships that facilitate the rearing of children by both of their biological parents.”[8] Any relationship between same-sex couples cannot, therefore, be rationally called “marriage” as they are unable to procreate, “naturally”. Hence, such marriages are but simulations which have the effect not of achieving marriage equality as much as degrading the base institution upon which it purports to be founded.
Like the concern that same-sex marriage devalues heterosexual marriage by imitation, it would appear that the courts in cases involving transgendered persons are more concerned with the devaluation of their definitions of sex then they are with the application of justice. Ignoring the scientific evidence presented to it as to the complexities of sex, the court in Littleton suggested that sex is defined by “the Creator” at birth and may not be altered by a “scalpel, drugs and counseling.”[9]
The irrationality and injustice of that decision seems self-evident. In everyday life, in every way that could possibly matter to the people with whom she interacted, Mrs. Littleton was a woman, just as I am. She saw herself as female, other people saw her as female, she displayed the secondary sex characteristics of a woman, the doctors who testified in her case testified that she was “medically a woman”[10]; in short, she performed the role of “woman” in every capacity in her life. Moreover, the court had before it evidence that sex is determined by many factors, including psychological, and it was stipulated that Mrs. Littleton was “psychologically and psychiatrically female before and after the sex reassignment surgery.”[11] Yet, despite all of this, the court in Littleton found her to be male, relying on a distinction so fine that no one outside of a medical technologist would be able to distinguish Mrs. Littleton from any other woman.
In order to find that Mrs. Littleton was male, the court needed to suspend the belief of its own senses, suspend belief in the testimony of the expert witnesses, and accept instead the notion that sex is reducible to a single, microscopic component of a person’s biology. Why go to such lengths to achieve what was clearly an unjust result? What was the court worried about?
I suggest that the court needed to reach this conclusion for fear that it would expose the shaky underpinnings of conventional sex determination and, by extension, bans on same-sex marriage. If sex isn’t real, then neither is cross-sex marriage, or, indeed marriage at all. If a “man” can become a “woman”, then everything we think we know about ourselves seems suspect. Once the “real” is unmasked in this way, it becomes less natural and more obviously a mere construct of the state – a notion that threatens the existing power structure. In the eyes of many, it is better for the world as we know it that this poor individual be denied justice than it is to allow this evil even the barest of footholds.[12]
At the end of the day, I hope that I will never need to know whether my marriage is deemed by a court to be same-sex or not, valid or not. While the question would undoubtedly interest legal scholars, it would necessarily arise out of the denial of some right that inheres in marriage, which is an unhappy prospect. A marriage between two lawyers assures that such a denial would not go unchallenged, but we would greatly prefer to fight the battle only on a theoretical plane, where the fundamental constitutional right to marry is not subject to popular vote and individual justice still matters.
[1] See, e.g., In re Kandu, 315 B.R. 123 (W.D. Wash. 2004) (refusing to recognize Canadian same-sex marriage under DOMA, and holding DOMA did not violate due process or equal protection clauses of the 5th Amendment under the rational basis test); Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) (upheld DOMA against constitutional challenge under 1st, 9th and 14th amendments).
[2] This raises the question of when sex is legally “changed”. Is it at the moment of surgery (substantive) or when the birth certificate is re-issued (form)?
[3] Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999) (invalidating seven-year marriage of the plaintiff since she had been born with male genitalia (and, presumably, chromosomes), and she therefore had no standing to sue as the widow in the wrongful death of her husband).
[4] In re Estate of Gardiner, 273 Kan. 191 (2002) (Wife received no share of estate upon death of husband as court said she was a man in the eyes of the law, despite sexual reassignment surgery, birth certificate noting her as female, and having satisfied all other prerequisites to marriage)
[5] Kantaras v. Kantaras (884 So. 2d 155 ) (Father denied custody of children as court said he was a female in the eyes of the law, despite undergoing sexual reassignment surgery and having satisfied all other prerequisites to marriage and legal adoption)
[6] In re Application for Marriage License for Nash, 2003 Ohio 7221 (Ohio App. 2003)
[7] It turns out that I am not the only person to appreciate this irony. See, Terry S. Kogan, Symposium: Transsexuals, Intersexuals, and Same-Sex Marriage, 18 B.Y.U. J. Pub. L. 371, 382-83 (2004), where the author observed: “The extreme irony of Corbett, Littleton, Gardiner, and other first-wave cases is clear. In their zeal to prohibit same-sex marriage, the judges reach a truly bizarre result: An individual who on the day of her wedding has the sexual identity of a woman, and has irreversibly altered her body into that of a woman, is legally allowed to marry only another woman.”
[8] Wilson v. Ake, at 1308
[9] Littleton, at 224
[10] Id. at 225. She also engaged in vaginal-penile sex with her husband.
[11] Littleton, at 225.
[12] As one commentator (an Ave Maria law student) declared, “The definition of male and female as these terms are used in marriage statutes should not be altered to reflect a psychological definition of sex. As one gender theorist stated, if sex categories are based on gender identity, "then the man and woman, masculine and feminine, and heterosexual and homosexual dichotomies necessarily become blurred." The distortion of these terms would significantly interfere with the public policy of states to protect traditional marriage.” Teresa A. Zakaria, Symposium: Rethinking Rights: Historical, Political, And Theological Perspectives: Note: By Any Other Name: Defining Male And Female In Marriage Statutes, 3 Ave Maria L. Rev. 349, 385 (Spring 2005)