When is a woman not a woman? How about when that woman was born a man and was later
converted into a woman?
Touchy topic here, right? You bet! That’s why I found it so interesting. In fact, I may be
labeled as a homophobe or heterosexist, I’ve found. Why? That’s really simple to explain:
because I don’t see eye-to-eye with the proponents of sex reassignment surgery.
There’s a current court case in the Leavenworth, Kansas District Court that could well
decide the fate of many future marriages in the U.S., as well as bring about a rash of
lawsuits and challenges to laws in the remaining 49 states. What’s so controversial? The
state of same-sex/trans-sexual marriages is the catalyst of this debate.
Specifically in question, at least in Kansas, is whether a man who opted to become a woman
through a sex-change operation is really a woman, and if so, if the marriage that the
man-who-became-woman is valid under Kansas law.
The Leavenworth District Court overturned a lower court decision that found such unions
violated a state law which bans same-sex marriages. The court instructed the low court
must determine if a person is male or female at the time of marriage, not at birth. This
is where debate arises.
If a person were a male at birth, that person would be a male at death, right? Not always.
There are somewhere between three million and ten million Americans that are neither male
nor female at birth. Sounds strange, right? Well, it goes to an even further extreme as we
examine this problem. These same folks, who were neither male nor female at birth may be
genetically opposite of the gender they and others consider them in everyday life.
There’s a medical term that describes these folks. That term is “intersexual,” and current
estimates by Dr. Anne Fausto-Sterling, based at Brown University’s Division of Biology and
Medicine, are that somewhere between one and four percent of all children born today are
intersexual.
According to modern medicine and arguments, it’s difficult to classify a person as male or
female, as there are, it’s argued, three ways to define a person’s sex: two being
biological in nature, and the third being societal.
The first and foremost way of classifying a person is biological and assigns sex through
the absence or presence of genitals. If a penis is present and vagina is absent, viola!,
the person is male. If the reverse is true, then the person is female. This is the way
Adam and Eve were classified in the Garden of Eden.
Science has dipped its fingers into many aspects of life, including identification of
people through DNA (deoxyribonucleic acid). Along with finding DNA as the basic building
blocks of life, scientists also found that sex is determined in the gene sequence. If a
person has two (XX) chromosomes, that person is distinctly female. If the person has one X
and one Y chromosome (XY), that person is distinctly male.
Now, however, society has to have a finger in everything, and things become even more
skewed. Society defines males as folks who look and act “male,” while people who look and
act “female” are classified as female. Then, of course, there is the homosexual
subculture, which we won’t even begin to examine in this context. This is the category
that most folks feel most comfortable using as a scale of masculinity and femininity.
Anything else begins to enter the realm of the unknown. Having set criteria for
determining what sex people are is easy, most people feel, and it’s something that’s
usually safe.
Enter Marshall and J’Noel Gardiner. Marshall married J’Noel in 1998, at the age of 85, and
died in 1999 following a heart attack. Sometime prior to being married, J’Noel was a man,
but had what’s called “sexual reassignment” surgery, thereby becoming a woman. Or so it
seems. One movement actually says sexual reassignment surgery provides “A new ‘Adam & Eve’
for a new Millennium.” I won’t touch that comment except to say, Oh, Brother!
Marshall, obviously, had been married before. He had a son, Joe, who is now engaged in a
legal battle over his father’s $2.5 million estate with J’Noel. Joe learned after his
father’s death that J’Noel was formerly a man. Or is still a man, or at least had the
physical appearance of being a man.
When the case was heard before Judge Gunnar Sundby, it was ruled that despite any and all
surgeries J’Noel may have had, that J’Noel is not a she, rather J’Noel remains a he.
In inking the appeal decision, Appeals Judge Robert Gernon wrote that “The same science
which allows us to map the genome and explore our DNA requires us to recognize these
discoveries in all aspects of our lives, including the legal ramifications.”
Gernon, in the opinion, continued, adding, “We can no longer be permitted to conclude who
is male or who is female by the amount of facial hair one has or the size of one’s feet.”
I’m not sure where the legal minds would take this case, but it seems clear that no male
has ever been considered female for lack of facial hair, or that a female was considered
male because of large feet. Ridicule may have been visited on a woman with large feet, but
a man with a smooth face would surely be faced with slight ridicule of being called “Baby
Face,” but also slightly envied by other men who must shave each day, yet still face heavy
whiskers before the end of the day.
In contrast, however, Gernon was correct in one aspect. We can no longer simply look at a
person’s external appearance to determine that person’s sex, with absolute certainty, but
neither can we look at a middle-aged woman and tell that her still youthful looking face
isn’t the result of the handy work of a skilled plastic surgeon.
Is it time we begin requiring DNA testing prior to marriage? No, just as it isn’t time to
require AIDS testing as a pre-requisite to obtaining a marriage license. Is it time to
revamp the language used by state and local states regarding marriage? Perhaps. Maybe
something along the line of, “Have you ever been the opposite sex you are now claiming?” A
simple Yes or No answer would suffice. This would, of course, also require states and
local communities across the country, maybe around the world, even, to consider what new
rules could or should be regarding this matter.
Sure, I can here the radicals at my door already. Folks would be yelling that states would
cast aside those folks who had sex change operations, not allowing them to marry. Of that,
I am not certain. In fact, I am not certain how any of that debate would work out in the
end. No matter what any state decides, there likely will be challenges all the way to the
U.S. Supreme Court.
Legal experts, I’m reading in news accounts, say the case in Kansas will likely have
ramifications across the country, possibly impacting the lives, marriages, and recognition
of others who have had sex change operations.
Shannon Minter, an attorney for the San Francisco-based National Center for Lesbian Rights
said in a recent interview “There’s so little case law in marriages involving a
transsexual person that inevitably, other states are going to look at what Kansas does.”
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"Do You Take This Man"
