Gay marriage! For homonormative transsexuals only!
A California group called Vote Yes Marriage is circulating a ballot petition which purports to eliminate the possibility of same sex marriage. What intrigues me is the way it defines man and woman:
Only marriage between one man and one woman is valid or recognized in California, whether contracted in this state or elsewhere. A man is an adult male human being who possesses at least one inherited Y chromosome, and a woman is an adult female human being who does not possess an inherited Y chromosome. Neither the Legislature nor any court, government institution, government agency, initiative statute, local government, or government official shall abolish the civil institution of marriage between one man and one woman, or decrease statutory rights, incidents, or employee benefits of marriage shared by one man and one woman, or require private entities to offer or provide rights, incidents, or benefits of marriage to unmarried individuals, or bestow statutory rights, incidents, or employee benefits of marriage on unmarried individuals. Any public act, record, or judicial proceeding, from within this state or another jurisdiction, that violates this section is void and unenforceable. (Emphasis added.)
OK, for the record, I don't support the ordinance. Not only does it prohibit same sex marriage, it prohibits the "incidents" of marriage (a can of worms I've discussed before).
But this definition of man and woman is an interesting new wrinkle, and I don't think I've seen that written into one of these laws before. I'll try to follow out what this means before I lose what's left of my mind. Let's see:
men who have become women by changing their sex from male to female would only be allowed to marry women
women who have become men by changing their sex from female to male would only be allowed to marry men
Likewise, men who have not changed their sex would be forbidden from marrying men who have, but they would be allowed to marry female-to-male sex changes. And vice versa: women who have not changed their sex would be allowed to marry men who have changed their sex to female.
So, like it or not, this ordinance would (if it gets on the ballot and passes) cause an instant role reversal of the present "heteronormative" situation. Right now, a man can marry a transsexual woman (a woman who who used to be a man), and such marriages are considered legal heterosexual marriages. If this passes, they'll become illegal homosexual marriages -- all "heteronormative" intentions of the couple notwithstanding.
And after this passes, there would be created for the first time a protected species of lucky, legal gay couples in California. Think about it: any man in California who found a woman who had changed her sex to male could marry "her" -- even though both would look and act like men, and while they would be be visually undistiguishable from other gay male couples, they'd be permitted to marry for the first time under California law. Ditto for lesbians who want to marry; they need only find a post operative male-to-female willing to exchange vows.
Transsexuals would be allowed to marry after their sex changes, but only in a homonormative manner.
If you don't think it will happen, you don't know California.
Just think. Virtual same sex marriage!
Brought to you by the American Family Association, the Traditional Values Coalition, and a whole host of other, apparently pro-virtual gay marriage groups!
(Um, this is satire, right? Will someone please let me know?)
posted by Eric on 08.27.07 at 01:43 PM
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Comments
"Satire"? Your posting, or the petition?
I think not, in either case, although the petition has got a better shot.
The (the petition and your analysis) do however make a pretty good demonstration of how bad laws with unintended consequences come to be.
Erm. Maybe sex changes for normal (not [pseudo-]hermaphrodites) should be disallowed then. Not that I am in favour of this.
Basically, unlike some other animals, sex in humans is genetically determined. Like it or not, until you can grow your own set of genitals using a version of your own DNA (one with the opposite sex chromosome, obviously), you will never be otherwise, no matter how much SRS you undertake.
There are countries that will not recognise SRS as changing your birth sex. I believe that should be the way, even if it does lead to absurd situations. But then, law at the fringes always leads to absurdities.
Greg · August 27, 2007 09:16 PM
MS, the only way to know would be a chromosomal test as a prerequisite for a marriage license.
Greg, I'm sure that the people drafted this initiative believe sex changes are wrong, but I doubt they thought it through. And even if they did, they can't very well disallow sex changes in the initiative, for that would run afoul of the California Constitution's prohibition in Article 2 section 8
(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.
I still don't know whether to treat this as satire. It's certainly a form of surrealism.
Anonymous · August 27, 2007 09:53 PM
The way I parse that is to specifically disallow any transgendered people any marriage. A male -> female would be a female with a Y; a female -> male would be a male without. Neither description fits their definition of man or woman.
Boobah · August 28, 2007 04:56 AM
Boobah, the problem with that parsing is that it would create an entirely new class of people who are not allowed to marry at all, but who previously were, and as M. Simon reminds, includes people who never had sex change surgery. It also begs the question of what is meant by "male" ("adult male human being") and "female." There is no definition offered -- other than the reference to chromosomes. Is a man to be considered legally female for wearing a dress? For taking hormones? For considering himself "female"? For being castrated? Or only when he has a vagina constructed?
The initiative is silent, and I think that advancing the argument that a "female human being" is not a "woman" but is nonetheless famale might very well cause the law to be declared unconstitutionally void for vagueness.
I just said that was how I parsed what they read. Quite frankly, to me the most likely explanation is that transgendered people never crossed the authors' minds. Given my biased and largely uninformed knowledge of the groups involved, it's also possible that making it illegal for the transgendered to marry was intentional.
As far as defining male and female, they may be relying on definitions elsewhere in law, common and/or legislative.
The real question is, I guess, are the authors intending there to be a difference between "men" and "male humans," or are they refining the (interchangeable) terms?
Boobah · August 28, 2007 05:38 PM
If you think about it, there's really no such thing as a "sex change" or a "transgendered person". There are women who've consented to both a sort of infibulation and addition of bits; and there are men who've consented to castration and alteration of bits. But the chromosomes do determine sex, and they do not lie.
What is disturbing is the lack of room under this law for people with chromosomal disorders.
The Anti-Idiotarian Rottweiler
Don?t bang your head!
"Satire"? Your posting, or the petition?
I think not, in either case, although the petition has got a better shot.
The (the petition and your analysis) do however make a pretty good demonstration of how bad laws with unintended consequences come to be.