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Where Do the Five Million Plus Non-male Non-Female Americans Fit Into the Gay Marriage Discussion?

By       Message MICHELE BURNS     Permalink
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The Indiana GOP recently reinserted "marriage is between a man and a woman" as a plank in the party platform. Translation: they are scapegoating gays and flamboyantly pandering to Christian fundamentalists and homophobic voters by reinserting a plank they formerly scrapped. Conservatives throughout the country are dismayed by the steady march of court cases chipping away at the legal discrimination that makes gays second-class citizens. Sooner or later the courts will deliver marriage rights to all, but some GOPers want it to be much later, and to shout from the rooftops to make sure everyone knows that when Republicans are in power they will do all they can to delay such freedoms: No risk of gays gaining equal rights on our watch, FOR SURE FOLKS!

I have a plan, however, to close this obnoxious venue for conservative pandering and to secure nationwide marriage rights for all. A lawsuit based on scientific facts could abruptly end the gay marriage debate. This lawsuit would be based on the fact that an exact point of scientific demarcation between male and female is a fiction.

Sex, male and female, is not clearly bifurcated; our language and culture, however, do not make room for anything but an either/or reality. Sex might be thought of, rather, as a continuum with a gray area in the middle. The existence of this gray area means that any law based on sorting humans into two sexes is scientifically spurious (not unlike race-sorting), and medical and constitutional privacy rights might be applied, expanding our choices to something like female, male, other, none-of-your-business, or undecided. Biologist Dr. Anne Fausto-Sterling, stirred up a storm with her 1992 article in which she suggested there might be five sexes instead of two.

Medically speaking a "masculine" or "feminine" appearance, visible genitalia, the ability to procreate, hormone levels, and genes and chromosomes, all fall short as tools to decisively determine that someone is purely male or purely female. And if there is no scientific means to firmly assign sex, then the courts should be banished from our shorts.

An estimated 1.7% of people are born with bodies that differ chromosomally, anatomically, or hormonally from the dimorphic, male/female ideal. That is 5.4 million Americans and 122 million people worldwide. Our culture, however, is so fixated on the faulty notion of only two options that sexually ambiguous infants tend to be arbitrarily assigned a sex, (and sometimes, tragically, that guess is surgically sealed.)

What about genetics and the sex chromosomes?

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Most females have two X chromosomes, while most males have an X and a Y chromosome, the Y supposedly driving male development. Some people, however, have only an X, or have one X and a damaged, partial X or Y, or they have two X's and a Y, or an X and two Y's. At least 30 chromosomes, not just the two "sex" chromosomes, also influence sex. Some apparently normal males have two X chromosomes and no male, Y chromosome at all. Genetic testing for Olympic athletes was tried but abandoned due to unreliability. Then there is the influence of androgens during gestation.

All embryos begin as females. It takes three precise androgen releases during gestation to form a male, and these do not always launch. Sometimes they launch, but the receptors are missing. Then there are the environmental assaults of endocrine-disrupting chemicals in water, food, and consumer products. Our society is awash in synthetic and natural hormones (i.e. meat, dairy, plastics, pesticides, cosmetics, pharmaceuticals), often unwittingly consumed by pregnant women. A very slight alteration of hormones during gestation can result in so called "feminized males" or "masculinized females," who may have a mix of male and female anatomy, sometimes hidden internally. The burden of environmental chemicals that can affect sex development is also rising, so we might anticipate a growing population of sexually ambiguous individuals.

It is a disservice to those in the ambiguous region of the sex continuum to deny their personal reality and to force them to accept legal assignment by some external authority. The existence of people in a mixed physical state should render forced labeling as male or female a violation of constitutionally protected privacy rights. I do not believe that forced sex assignment would stand up in court if the proceedings were rational and just. Every time some politician whips out the "same-sex" marriage rhetoric I think of these invisible people in the middle. Should hermaphrodites be banned from marriage, or should they be able to decide on their own who they are and who they love? How can we transfer such powers to the state? The situation of gay people is no different. The privacy rights of everyone with regards to their "private parts" should be sacrosanct. We love who we love and a government decree robbing some of rights others enjoy only diminishes a society.

It is time to nix the hateful pandering of the GOP by using science to nullify the gay-marriage debate (some will of course eternally deny the science, but...) It is time to chuck the inflexible definitions of male and female that are manifestly inadequate to the reality of millions. The protections of privacy in the U.S. Constitution should preclude the courts from peeking in our shorts and attempting to prove that people who claim to be male or female, or who refuse either assignment, are something other than what they believe themselves to be. A lawsuit based on medical privacy rights, highlighting the flaws in the practice of sex assignment, could render unenforceable all laws stating that marriage can only be between a man and a woman.

The current GOP anti-gay-marriage political frenzy strikes me as the death throes of a last bastion of legalized bigotry. The definitions of sex, given current medical knowledge, must be amended to accommodate everyone. The U.S. is ripe for a lawsuit that will end the use of this foul and hurtful political football. Any eligible person should be allowed to marry any other eligible person. Nature is diverse and we are a civilized people. The civilized option is to allow people equality and the freedom to be who they are and to marry who they will, without political scapegoating, forced assignment, or discrimination.

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