As the debate over marriage for gays and lesbians grows, many within the intersex community are watching it with a mix of anticipation and dread. While many within the intersex community identify as gay, lesbian or bisexual, many others identify as heterosexual and may believe the issue doesn’t affect them. While we all hope that is the case, it may very possibly affect the entire intersex community with unintended consequences if we are not cautious and proactive in this debate.
One of the big unknowns in this debate is how one man-one woman for the sake of marriage will be defined in any legislation that will be introduced seeking to bar marriage for gays and lesbians. At this point, this little, yet significant detail has not yet been discussed.
There is fear that any language seeking to define male and female will be taken from Littleton v Prange, Texas Appellate Court, 1999. This judgment upheld the decision of a lower court that trans woman Christie Lee Littleton was legally male, and that her marriage to her late husband had been invalid. As with the UK’s landmark Corbett v. Corbett case in 1970, this case was sparked by property issues: Littleton had sued doctors for malpractice following the death of her husband. The doctors responded by claiming that she was legally male and as such could not be the surviving spouse of a man and the Court upheld their claim, relying upon a chromosomal test and explicitly referring back to Corbett. (from PFC.org.uk)
If any constitutional amendments attempt to use Littleton and thus chromosomal tests as the marker for male and female, the intersex community could be severely affected. This is especially true for members of the intersex community who consider themselves heterosexual:
- A woman with AIS could be prohibited from marrying her male (XY) partner because it would result in the marriage of two XY individuals
- Someone born XXXY, or any other variation of mosaicism can’t legally say male or female, if male and female is legally defined to be XY and XX
- An XY person born with micropenis underwent nonconsensual sex reassignment surgery as an infant and is reared as female. Eventually she meets a man and want to get married, but both are genetically XY. Or, she identifies as a lesbian. Will they be allowed marriage because it is then an XX and XY pairing? If this person should transition back to his birth gender, things could get even more confusing
- Parents who think that genital surgeries are for the good of their child (because that is what they have been told) may later find out that more than the child’s genitals have been mutilated. That person’s desire for marriage may be denied as a result of childhood surgery and gender of rearing if different from genetic sex or there are any chromosomal variations from standard XX and XY
- The flipside of all this is if they try to use Littleton as the basis for defining one man – one woman, intersex people with variant chromosomal makeup and who identify as gay or lesbian could theoretically get legally married.
These are just a few simple examples about theoretical outcomes if a constitutional amendment attempts to define one man/one woman for the sake of heterosexual marriage. No matter your stand on the exploding debate, it’s an issue that we need to be concerned with.
The entire intersex community needs to be proactive in writing and calling our legislators and asking them how they define male and female. Engage them and explain that not every one falls into a neat binary.