What is a man and a woman?
July 21, 2011 5:35 PM   Subscribe

Kudzu and the California Marriage Amendment Proposition 8 Eliminates Right of Same-Sex Couples to Marry: Initiative Constitutional Amendment SECTION I. Title This measure shall be known and may be cited as the "California Marriage Protection Act." SECTION 2. Article I. Section 7.5 is added to the California Constitution, to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California. The biggest problem is that laws like the California initiative will make the courts decide who is male and who is female — and all available decision criteria create unavoidable miscarriages of justice that will, or should, dismay initiative proponents. You're probably thinking, about now, that I'm going to exaggerate the sex-definitional 1 problem: Probably, you and everyone you know is unambiguously male or female — or at least has always believed himself or herself to be so, and nobody's challenged that, and nobody's likely to. That's true, absolutely: Only maybe one live birth in 100 has some non-standard sex anatomy, and genetic anomalies are slightly rarer than that. However, let's talk about those 1-in-100 or 1-in-1000 cases — because those could be you, or your aunt, or your best friend — and because our system of law has to deal with 1-in-1000 situations, too.
posted by robbyrobs (50 comments total) 12 users marked this as a favorite

 
Yet another reason the law should not discriminate by gender.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 5:41 PM on July 21, 2011 [5 favorites]


The conservative mind would probably just bar such people from marrying anyone.
posted by a robot made out of meat at 5:47 PM on July 21, 2011 [7 favorites]


George Liquor American is a man. Actually, he's a cartoon of a man. But I picture old George when I imagine what conservatives think (chastely, of course) about what makes the man in a marriage.

I am still working on what cartoon figures conservatives imagine women to be in marriage. Jessica Rabbit?
posted by Blazecock Pileon at 5:52 PM on July 21, 2011 [1 favorite]


I am still working on what cartoon figures conservatives imagine women to be in marriage. Jessica Rabbit?

No, she's the mistress. Jane Jetson is the wife.
posted by Sticherbeast at 5:59 PM on July 21, 2011 [4 favorites]


yeah no, Jessica has like a personality and a job.
posted by The Whelk at 6:06 PM on July 21, 2011 [1 favorite]


Plus, it turned out that Jessica was Chandler's dad on Friends, so that probably squicks the conservatives out.
posted by The World Famous at 6:16 PM on July 21, 2011


I wish you'd structured this post better.
posted by wilful at 6:20 PM on July 21, 2011


Meanwhile in Illinois.

I'm happy with my gender, and I feel for the transgendered. I am glad I don't have that need and am denied rights because of it. I also don't give a fuck what people want to do to their own bodies, how they want to define themselves, who they have sex with, or what names (or how many) go on a marriage license or certificate.

I say take away the perks of a straight marriage and have equal protection under the law for all. Then even single people get the same rights as everyone else.
posted by cjorgensen at 6:20 PM on July 21, 2011 [8 favorites]


I'm happy with my gender, and I feel for the transgendered.
posted by cjorgensen


Eponyronic.
posted by Faint of Butt at 6:25 PM on July 21, 2011 [13 favorites]


I changed sex a long time ago and because all documents say female I get to be married in most states.... on a contingent basis. Because in the vast majority of states if I got divorced or my partner died then I could easily be denied any part of the estate . My marriage would only be valid as long as I kept my mouth shut and no one contested it which is pretty much a sham. In Texas, as I now understand it, I am not allowed to be married to anyone of either sex.

I get so mad sometimes ...
posted by Poet_Lariat at 6:35 PM on July 21, 2011 [9 favorites]


As a probabilist: if you know many hundreds of people (as you
probably do) and one in a hundred people has " non-standard sex anatomy", then you probably know such a person. You might not know that about them, but this affects someone you know.
posted by madcaptenor at 6:42 PM on July 21, 2011 [1 favorite]


I agree that Proposition 8 is f—d up, but let's face it: bringing up the transgendered to explain why the "traditional definition of marriage" is a bad one is pretty much not going to convince anybody of the damage done by Prop 8.
posted by jepler at 6:43 PM on July 21, 2011 [1 favorite]


I wish this piece could actually make a difference. But my sense is - based on what I've read and heard from anti-gay marriage people - that most of them aren't opposed to gay marriage because of any rational reason. This is unlikely to sway them.
posted by rtha at 6:45 PM on July 21, 2011 [2 favorites]


rtha: I agree. In fact they might see "doesn't let people who don't have one of the two most common anatomical configurations get married at all" as a feature, not a bug.
posted by madcaptenor at 6:50 PM on July 21, 2011 [1 favorite]


jepler : let's face it: bringing up the transgendered to explain why the "traditional definition of marriage" is a bad one is pretty much not going to convince anybody of the damage done by Prop 8

Why? Because we're not a good enough example? Because it's hipper to be gay today? But hey... thanks for the marginalization, now that I know my place and all.

I think it's a freaking great example. I think I'm a freaking great example of why the law is messed up.
posted by Poet_Lariat at 7:16 PM on July 21, 2011 [7 favorites]


"This isn't mere speculation. Texas's "marriage protection" law is exactly what let two women, Jessica and Robin Wicks, one a male-to-female transsexual, win their marriage license in San Antonio, Texas: "

I attended this wedding! Ms. Littleton, the widow in "Littleton v. Prange" was there. She was so happy to see that someone else could benefit from the state's short-sighted views on sex and gender.

The protesters there had the most confusing signs- they didn't really seem to understand what was going on, but they were certain it was Something Bad. There isn't, apparently, a Bible verse that could be readily applied to the situation.

Being at that wedding, I felt like I was part of the first victory we LGBT folks had in that state for a long time. Even though the law was designed to deny a widow a wrongful death lawsuit against her husband's employer, we all celebrated being one of the trickles that will lead to the flood.
posted by kamikazegopher at 7:17 PM on July 21, 2011 [11 favorites]


Why? Because we're not a good enough example? Because it's hipper to be gay today? But hey... thanks for the marginalization, now that I know my place and all.

No, because the people whose minds need changing aren't basing their feelings on traditional marriage on any kind of rational argument, and adding something else that confuses and scares them is not going to be effective. I don't think marriage equality is going to happen without some brute force action, until enough people realize they're wrong and backward, just like any other type of civil rights legal wrangling has had to go. These are people who can't be reasoned with and in the end will simply have to be TOLD.
posted by padraigin at 7:21 PM on July 21, 2011 [1 favorite]


adding something else that confuses and scares them is not going to be effective

So Transgendered = scary and confusing. Gay or Lesbian , not so much. headbang

You are so not helping.
posted by Poet_Lariat at 7:24 PM on July 21, 2011 [4 favorites]


Which is it...that we will achieve equality by pandering to conservatives' irrational fear/hatred of transgendered people, or that they will simply have to be TOLD? I'm getting mixed messages.
posted by Salvor Hardin at 7:25 PM on July 21, 2011


I agree that Proposition 8 is f—d up, but let's face it: bringing up the transgendered to explain why the "traditional definition of marriage" is a bad one is pretty much not going to convince anybody of the damage done by Prop 8.

Umm... I believe in all but one of the scenarios described, the person would be described as having an intersex condition, rather than being transgendered. And the one that mentins trans people says "Oh yeah, trans people would fail this test too."

Yes, it's possible to be both trans and intersex. But part of the point here is that there are plenty of intersex people who a) may not know and b) aren't trans.
posted by hoyland at 7:31 PM on July 21, 2011 [2 favorites]


As a probabilist: if you know many hundreds of people

Homogeneity is a very strong assumption with any real phenomenon. Also, 1:100 is not remotely in line with the data that I've found. He must be including all sex-chromosome abnormalities (most of which are concordant in terms of external-appearance and presence-of-Y but sterile) and ambiguous-genitalia at birth. The estimates I've seen are more like 1/1000 to 1/5000. It's a big world, so there are plenty of such people, but it's quite likely that someone doesn't know any.
posted by a robot made out of meat at 7:34 PM on July 21, 2011


I'm willing to guess that the genetic things we're talking about are at least more homogeneous than sexual orientation. Do kids with ambiguous genitals grow up
and move to San Francisco like gay kids do?
posted by madcaptenor at 7:40 PM on July 21, 2011 [1 favorite]


You know what else is an invasive species in the South? Bigots.
posted by Dr. Zira at 7:41 PM on July 21, 2011 [2 favorites]


So Transgendered = scary and confusing. Gay or Lesbian , not so much.

Sorry, is this a put-on? Do you really think that the knuckle-draggers inveighing against same-sex marriage are not equally squicked out by transgendered marriage?

"Surely Torquemada will rethink his inquisition when he sees it affects us Muslims as well as the Jews..."
posted by bjrubble at 7:42 PM on July 21, 2011 [2 favorites]


So Transgendered = scary and confusing. Gay or Lesbian , not so much. headbang

You are so not helping.


I'm sorry I'm not helping. I'm sorry that the people who don't want you to be considered an equal human being are too befuddled by their fears and prejudices to be reasoned with and I actively work to shut them up and marginalize them. But I grew up with those people, I grew up with people who were annoyed that they even had to treat women or ethnic minorities like people and tried to avoid doing so at any opportunity. I know they're not going to be reasoned out of a viewpoint they didn't get reasoned into to begin with.

What I meant to say was that people who are against marriage equality have an irrational block, almost exclusively based on religious belief, that prevents them from accepting the inevitable, and adding yet another facet won't bring them closer to acceptance but may cause them to dig their heels in deeper. They want to "other" you but I am "othering" Them. They, with a capital T, are idiots and in the end the only thing to do with idiots is simply not allow them to have Their way.
posted by padraigin at 7:44 PM on July 21, 2011 [4 favorites]


Can't this be 1. an interesting point in the ongoing discussion about marriage equality, 2. a compelling moral argument, and 3. unlikely to convince many people who are presently against gay marriage?

Because I think it's all three, but I'm afraid denying the third point is tantamount to burying one's head in the sand.
posted by dixiecupdrinking at 7:47 PM on July 21, 2011 [6 favorites]


I would also like to add that I think adding the transgender aspect to the dialogue actually strengthens my own resolve, and may work as a little bit of a lightbulb moment for people who are generally favorable to marriage equality but not particularly passionate about it. New ways to think about a common subject are really useful for people who actually base their values on thought.
posted by padraigin at 7:52 PM on July 21, 2011 [1 favorite]


That was an excellent piece, robbyrobs. Thanks for posting it.
posted by homunculus at 8:37 PM on July 21, 2011


Poet_Lariat: "In Texas, as I now understand it, I am not allowed to be married to anyone of either sex."

As far as I can tell, the bill made it out of committee but did not get passed. (*Whew*!)
posted by jiawen at 8:40 PM on July 21, 2011



I think it's a freaking great example. I think I'm a freaking great example of why the law is messed up.


You may think it's a great example, and I may think it's a great example, but the majority of people voting probably don't give a fuck, or think it's even better that transgendered people now can't get married.
posted by dazed_one at 8:50 PM on July 21, 2011 [1 favorite]


dazed_one: What is your point considering that the same people don't think that gays and lesbians should get married? So why not bring out that the law is effecting other groups than just gays and lesbians ? The point is to educate isn't it? Such laws are not just affecting gays and lesbians only so I see don't see why such education should not be inclusive from the start.
posted by Poet_Lariat at 10:06 PM on July 21, 2011


The point is that there is no reasonable argument against gay marriage; that people who do argue against gay marriage do so on the basis of ideology, not reason; and that the existence of people who don't fit neatly into a male vs. female classification is an even greater affront to that underlying ideology than is homosexuality.

In other words, anybody capable of mistaking "Adam and Eve, not Adam and Steve" for an argument is also likely to have an unshakeable belief that male and female created He them, and experience the counterexample given by your existence as an affront rather than a teachable moment.
posted by flabdablet at 10:24 PM on July 21, 2011 [1 favorite]


I agree that more education is a good thing. I also agree that for the ideological No Gay Marriage crowd, it won't make a damn bit of difference.
posted by rtha at 10:26 PM on July 21, 2011


In other words, anybody capable of mistaking "Adam and Eve, not Adam and Steve" for an argument is also likely to have an unshakeable belief that male and female created He them,

You are saying that people who do not believe as you do in this matter are unteachable . Their minds cannot be changed so there is no use trying to do so. And yet , year after year, the polling numbers for accepting LBGT marriage equality overall are rising so clearly someone's mind is being changed and it makes sense to continue to educate. Twenty years ago marriage equality laws would have been unthinkable, now we have half a dozen or do states where they exist. Obviously minds are being changed. Just because the hypothetical person in your example is incapable of learning does not mean that the effort should be stopped. Nor does it mean that bringing the intersexed and transgendered into the discussion is either bad or useless.
posted by Poet_Lariat at 11:11 PM on July 21, 2011 [4 favorites]


Wait- this piece was only sort of about transsexual people, right? As in, people who were born, grew up as sex A but decided to live as sex B.

I thought the main argument was that, even if transsexual people didn't exist, there's a whole bunch of people who have a more ambiguous sex, through no "fault" of their own. You can't argue it's a lifestyle choice to be born XXY, God or whoever must have done it.

I'm sure there are people this argument won't convince, but it doesn't hurt to try.
posted by BungaDunga at 11:14 PM on July 21, 2011


I think this argument might have the tiniest chance of being persuasive if framed as "Why is the government doing DNA testing on everyone?? If these laws pass, you will be forced to give a DNA sample and submit to a full physical inspection just to get married! But is that REALLY why they want your DNA??"
posted by salvia at 12:23 AM on July 22, 2011 [3 favorites]


You are saying that people who do not believe as you do in this matter are unteachable . Their minds cannot be changed so there is no use trying to do so. And yet , year after year, the polling numbers for accepting LBGT marriage equality overall are rising so clearly someone's mind is being changed and it makes sense to continue to educate.

People who have their minds made up along those lines cannot have their minds changed through any amount of teaching. It's a journey they have to undergo within themselves. No amount of logic or reason will lead them to change their minds unless they first decide that their minds can be changed.

If people's minds are being changed year after year, it isn't because someone presented them with a cogent and brilliant argument about gay marriage. It is because gay men and lesbians are living lives of openness and dignity within their community and they've had contact with those people and it turns out that homosexuals are not the boogeyman they have always believed, and that created the first chink in their mental wall of bigotry.

This is now the case, this has ALWAYS been the case, and it's the argument against the closet which has been made for over 40 years at this point.

This will also be true with intersexed and transgendered people as time moves forward. As they live more visible lives, the misunderstandings and apprehension toward them will vanish. Being marginalized and invisible only leads to marginalization and invisibility. Being open and present leads inevitably toward acceptance.
posted by hippybear at 3:50 AM on July 22, 2011 [4 favorites]


This argument misses the essence of Proposition 8, which is that marriage is not a universal right but a political privilege a majority grants itself. That the majority which is heterosexual is also almost all also physically and mentally of an unambiguous gender from birth goes without saying.

What I find interesting is that the gay marriage movement to some extent embraces the majority privilege premise, and just seeks to expand the covered majority. Polygamy-- whether religious, cultural, or modern polyamorous type -- remains excluded. People too ugly, obnoxious, solitude seeking, socially inept or disabled to have much prospect of marriage continue to have to subsidize the marriage privilege they can't enjoy.
posted by MattD at 4:35 AM on July 22, 2011 [3 favorites]


I apologize for Poet Lariat, hoyland, and anyone else I may have unintentionally offended with my earlier response.

My remarks were not intended to denigrate or marginalize people who are transgendered, intersexed, or [any other term I could use here that would be respectful to the individuals that the original article talked about].

It's clear enough to me that all of the people described in the article deserve my respect and the respect of society, including equal legal recognition of their relationships.
posted by jepler at 6:24 AM on July 22, 2011 [1 favorite]


I'm willing to guess that the genetic things we're talking about are at least more homogeneous than sexual orientation. Do kids with ambiguous genitals grow up
and move to San Francisco like gay kids do?


Many of the sex-chromosome abnormalities are associated with looking physically unusual, so yes, they segregate.
posted by a robot made out of meat at 7:25 AM on July 22, 2011


rtha:
I wish this piece could actually make a difference. But my sense is - based on what I've read and heard from anti-gay marriage people - that most of them aren't opposed to gay marriage because of any rational reason. This is unlikely to sway them.
The article is not really about swaying the bigots out there. It's about the impossibility of legally enforcing gender definitions, because A) there's a surprising number* of people out there who, for a surprising number* of reasons, do not fit the usual binary classification as a matter of congenital anatomy and genetics (ie, there's no basis for accusing them of "choosing" to be transgendered); and B) there is no reliable test for establishing a person's gender in these cases.

As the article says, "our system of law has to deal with 1-in-1000 situations, too."

* Surprising to me anyhow. I found the article fascinating in its discussion of all the intersex conditions.
posted by adamrice at 8:09 AM on July 22, 2011 [1 favorite]


adding something else that confuses and scares them is not going to be effective

So Transgendered = scary and confusing. Gay or Lesbian , not so much. headbang

You are so not helping.


Poet_Lariat, can you point to the statement that padraigin (or anyone else here) made that suggested "gay and lesbian marriages are not scary and confusing to opponents of gay marriage"?

You're trying to turn statements that speak of the ignorance and close-mindedness of anti-LBGT bigots, into statements that attack LBGTs. It's not helpful. You aren't being victimized by people like padraigin; they're sympathetic to your cause.
posted by IAmBroom at 10:14 AM on July 22, 2011 [2 favorites]


The article is not really about swaying the bigots out there. It's about the impossibility of legally enforcing gender definitions, ...

Good point, adamrice. And it's potentially a game-changing, SCOTUS-worthy application of equal protection to the issue.
posted by IAmBroom at 10:15 AM on July 22, 2011


Sure, in order to get votes, you need to get uncritical people to sympathize with your cause. That means you have to Other, stereotype, spin, and otherwise bullshit your way into their heads through the discipline known as "advertising".

I saw a thread a couple days ago with a video of a kid learning about gay marriage in between rounds of ping-pong. That's good advertising. We have threads about that sort of thing, see.

Here's a thread about legal problems that come about when you try to classify every human being as either male or female. Let's talk about that.

The legal discussion might not be great for advertising, but it's probably useful for people who are in some kind of position to fight legal battles. For that matter, it might even convince some intelligent people who are sensitive to logical and procedural problems, but have underdeveloped ethics.

Yes, intelligent people are just as capable of being bigoted as anybody else. It's harder to avoid questioning yourself when you're smart, but since you are smart, you can try harder.
posted by LogicalDash at 1:45 PM on July 22, 2011


You aren't being victimized by people like padraigin; they're sympathetic to your cause.

When someone tells me that speaking out against discrimination against me will really make no difference nor change any minds they are neither helping nor being sympathetic. They are marginalizing me.

We often use LGBT to indicate the wide array of common needs and the common areas of discrimination those of us in the acronym are supposed to align ourselves against. The truth of the matter is that largish Gay and Lesbian political organizations regularly throw the transgendered segment of the acronym under the bus when it comes to enacting laws against such discrimination. That's the truth and that's a fact so I'm not going to ask your forgiveness for me reacting to someone telling me that the concerns of the transgendered aren't really helping the cause, the implication being that we should really just shut up about it and let the political wheels roll on. That's not helping.

We're here. We're not going to shut up about it. Get used to it.
posted by Poet_Lariat at 2:10 PM on July 22, 2011


When someone tells me that speaking out against discrimination against me will really make no difference nor change any minds they are neither helping nor being sympathetic. They are marginalizing me.

Wow, that's so not my reading of what she said. And it's absolutely not my reading of what people (including me) are saying when I or others say that this argument isn't going to make a difference to those who are ideologically opposed to gay marriage. I think it's a perfectly cromulent argument to make, and as many people as possible should make it - with the understanding that it's not going to make a shit's bit of difference to a lot of people who think gay marriage is icky. It's another pebble in the pile of "Why DOMA is DUMB", and that's not nothing, but it's not the thing that's going to convert the ideologues. I'm pretty sure that God Himself coming down out of the sky and saying "Gay marriage is okay by me!" would still fail to convince a good portion of them.
posted by rtha at 2:22 PM on July 22, 2011 [2 favorites]


You are saying that people who do not believe as you do in this matter are unteachable . Their minds cannot be changed so there is no use trying to do so.

I'd love to be proved wrong.
posted by flabdablet at 1:52 AM on July 23, 2011 [1 favorite]


The larger point being, "You can’t reason someone out of a position they didn’t reason themselves into."

Rational argument is mostly for the people sitting on the fence, the folks who aren't yet emotionally invested in their position. Rational argument is distinctly less useful in persuading people whose very identity is wrapped up in whatever position they've decided is important to them.
posted by AsYouKnow Bob at 8:51 AM on July 23, 2011


The larger point being, "You can’t reason someone out of a position they didn’t reason themselves into."

I know people really like to repeat that line and it does sound very eloquent. But it's simply not true in the sense that I think it's usually used. The key is not that reason cannot get someone out of a position into which it did not get them in the first place. It's that you cannot reason someone other than yourself into or out of anything. People must use reason themselves in order to reach reasonable positions. Reason cannot be used against them or used on them by someone else. That said, people use reason all the time to change their mind about positions they arrived at through means other than reason.
posted by The World Famous at 12:40 AM on July 24, 2011 [1 favorite]


We're here. We're not going to shut up about it. Get used to it.

Poet_Lariat, is it easier to fight we who support your cause, than actual enemies? It's certainly safer.

Honestly, the harder you try to cast us as "hateful others", the worse you sound. Try focusing some of that angst onto someone who deserves it.
posted by IAmBroom at 8:17 AM on July 24, 2011


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