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According to historian Alice Dreger, the editor of Intersex in the Age of Ethics and author of Hermaphrodites and the Medical Invention of Sex, doctors in late 19th century France and Britain believed that gonads are the source of one's true sex: you are a man if you have testes; female if ovaries. Dreger wrote in page 9 of Ethics: "So strong was doctors' belief in the Gonadal Definition of Sex and the primacy of the gonads that in Britain the 'problem' of 'women' with testes was sometimes 'solved' by removing the testes from these women, and in France by imploring these patients to stop their 'homosexual' alliances with men [...] French experts observed, 'The possession of a [single] sex [as male or female] is necessity of our social order, for hermaphrodites as well as for normal subjects.'"
While the Gonadal Definition of Sex was abandoned since 1950s in favor of John Money's theory that nurture, not nature, determines one's gender, our "social order" continues to necessitate everyone to possess a single sex, male or female. Nowhere is this more evident than in the area of marriage in the contemporary U.S. society: even though a number of foreign countries and domestic jurisdictions have began to legally recognize same-sex marriages, majority of us still live in areas that do not. Thus comes a question: what is one's legal sex based on?
In an ideal world, one's sex should be determined by how the individual identify as, regardless of her or his anatomy. Or perhaps in an ideal world "sex" as a category would lose legal meaning, as everybody would be treated equally under the law. Regardless, we do not live in an ideal world; we live in a society that is hostile to transsexual people and all those who do not fit into the narrow definition of binary genders.
The 1999 wrongful death suit brought by Christie Lee Littleton against her deceased husband's physician in Texas took an ugly turn when the defense attorney argued that the marriage between Littleton and her late husband was invalid because Littleton was a transsexual woman. Because she was genetically male, who could not legally marry another male, the defense argued, Littleton did not have a legal standing to sue as a widow in the first place. The Court agreed, ruling Littleton's 7-year marriage invalid.
Curiously, Justice Karen Angelini while writing a concurring opinion admits that the presence of intersex individuals pose a serious threat to the simplistic Genetic Definition of Sex. "[Because] we lack statutory guidance at this time, we must instead be guided by biological factors such as chromosomes, gonads, and genitalia at birth. [...] such biological considerations are preferable to psychological factors as tools for making the decision we must make. I note, however, that 'real difficulties ... will occur if these three criteria [chromosomal, gonadal and genital tests] are not congruent.' We must recognize the fact that, even when biological factors are considered, there are those individuals whose sex may be ambiguous. Having recognized this fact, I express no opinion as to how the law would view such individuals with regard to marriage. We are, however, not presented with such a case at this time." In other words, Justice Angelini evades the question of intersex people's legal sex.
In 2002, the Supreme Court of the State of Kansas concurred with the Texas decision, invalidating the marriage of J'Noel Gardiner, a transsexual woman, and her late husband Marshall. After his death in 1999, Marshall's son Joe challenged the validity of his marriage to J'Noel and thus her share of the $2.5 million estate upon finding out her status as a transsexual woman. In this case, the Court asserted that the legislative intent behind the State's marriage law presumed terms "male" and "female" in the biological sense, that the legal definition of "female" did not include transsexual women.
An unexpected consequence of these decisions is that some same-sex couples could now marry legally, if they are genetically "opposite sex." Shortly after the Littleton ruling, a lesbian couple in Houston--one transsexual woman and one non-transsexual woman--successfully convinced the County cleark to issue a marriage certificate based on the Court's determination that a transsexual woman is legally a male.
Genetic Definition of Sex, like Gonadal Definition of Sex, is invasive and problematic--particularly when it is used to reserve certain rights and privileges, such as marriage, to some people and not others.
While it is unlikely that someone who was assigned female, raised as female, and lives and identifies as female will be legally declared male simply because of her XY chromosomes as in the case of complete androgen insensitivity syndrome, those intersex individuals who have more complex background (such as history of having legal gender changed, either voluntarily or involuntarily) may find themselves having to defend the validity of their marriage.
One thing we might agree with the judges in Littleton v. Prange and In re Gardiner Estate is that this situation calls for legislative solution. Thus, we support LGBT movement's separate goals of attaining the equal treatment of same-sex and different-sex couples under the law, and of having the state legally recognize one's gender identity.