Do I Have the Right to Marry Anyone?

On Sexual Identity and Intersex Experience

I'm married. I wonder if I'll be sent to jail.

DOMA, the Defense of Marriage Act, states that the U.S. federal government defines marriage as a legal union between "one man and one woman." My home state of Wisconsin goes further, providing that residents other than "one man and one woman" who go out of state to marry can be fined up to $10,000 and/or imprisoned for up to 9 months.

My spouse and I got married out-of-state.

The law scares me--because I'm intersex by birth.

My spouse, for whom I thank my lucky stars, is also intersex. We have very different bodies, different "conditions," but we share key experiences that bind us closely. And one of those shared experiences is a constant feeling of unease with regulations and categorizations--marriage laws, for example. If you were born neither male nor female, and you were looking at laws banning marriage unless it joined "one man and one woman," how would you feel? Unacknowledged, uncomfortable, socially unmoored? The people who wrote these discriminatory marriage laws had other aims--the existence of intersex people probably did not cross their minds when they were putting the bills together. But that's how a million regulatory regimes impact us. You are required to declare a dyadic sex, supposedly to protect your identity or serve your needs. That's why you have to check off an "M" or an "F" box to get a driver's license, or open a credit card account, or fill in a Facebook survey. True, these checkboxes conflate together physical sex and gender identity. I'm intersex, but my gender identity is masculine, so I can just check the "M" box on the Facebook survey about blue jeans.

But marriage is different. There's an inquiry into your "true sex"--supposedly to protect society at large.

The furor focuses on "same-sex marriage."

Conservative opposition to "homosexual activism" is what has driven the enactment of DOMA and the 29 separate state laws limiting marriage to "one man and one woman." I'm sure you're familiar with the rhetoric, which tends toward Biblical one-liners: "Male and female created He them;" "God created Adam and Eve, not Adam and Steve." There's the constant quotation from Leviticus, "You shall not lie with a male as with a woman. It is an abomination" (with the constant nonquotation of other passages from Leviticus, like the prohibition against wearing fabric mixing linen with wool, or eating pork, or trimming one's beard).

According to this simplistic interpretation of the Bible, God made men and women to be opposite and distinct, intended for procreative marriage, with a husband leading the household and a wife practicing submission to him. Heterosexual marriage based on these principles is said to be the foundation of society. Straying from it, we are warned most stridently, will undermine both morality and social order.Advocates of same-sex marriage have written many eloquent defenses of allowing gay- and lesbian-identified couples to wed. I certainly agree with them that male couples and female couples should be able to marry.

But where do I fit in this picture, as an intersex individual?

Last year I had a conversation with the leader of a proselytizing Christian group that had taken over the central plaza on my college campus. They were holding up signs saying that any sex outside the context of a marriage between one man and one woman damned a person to hell. I'll give them this: they were coherent in their sexual beliefs. They were also holding up signs about masturbation earning one eternal damnation (an assertion that did not win them a lot of converts in the college audience).

I stepped aside with the leader, and asked him respectfully what his religious precepts would advise for me. I explained that while I lived as a man, and he saw me as one, I was born with an intersex condition and was assigned female at birth. Since I was neither male nor female, how was I to follow a command that marriage only be contracted between a man and a woman?The religious leader stared at me for a bit, then rallied. He said that he wanted to tell me that he had great pity for me, and that God did not intend that I be born intersexed. "Birth defects," he explained, "exist because of Adam's fall. Original sin warped God's creation, and that's why tragedies such as the birth of a baby with crippled legs or like you occur." He explained that when Jesus came again, all of this disorder would be purged, and there would be no more people like me. I mustn't be angry at God but at sin for putting me in my position.

I told him that I believed that I was born exactly as the universe intended, and was not angry at God. What upset me was how I was treated by my fellow human beings. In any case, given that I did exist as an intersex person, whom did he believe I was permitted to marry?

He asked me what the doctor had put on my birth certificate, and I said "female." He gave me a grave face, and told me, "I'm sorry, but then that is what you are. You may look like a man but you are not, and you can't marry a woman. It's like the case of a transsexual, even though it is not your choice." So, according to this religious leader, sex assigned at birth governs marriage law, and there can be no sex transitions, for intersex people or for those born with normative genitalia. (Nonintersex trans people get the extra distasteful twist of the lip for a "choice," but the end result is the same.)

I then asked the religious speaker if he thought I should marry a man. He looked very uncomfortable and just shook his head. I said, "So you don't think I can marry anyone?" He suggested that I dedicate myself to God's will and eliminating sin rather than dwelling on my personal situation.

I guess that's what monks and nuns do: dedicate themselves to God, and live a life of celibacy. And since he didn't think I could marry anyone, and sex is only allowed in marriage between a woman and a man trying to procreate, celibacy is what he felt God required of me.

In the parlance of my Jewish ancestors, Feh.

I did ask him one more thing: why did he think that the doctors had picked the "right" dyadic sex for me? Couldn't I be trusted to look into my heart and know myself better than they? He just said that doctors are the ones who know, because they have the technology and the tests.

I don't know when or how doctors became the oracles of divine will for good Christians. In fact, I'm sure that when doctors declared that masturbation was healthy, the members of the group I encountered rejected that promasturbation prescription vehemently. . .

The majority of Americans would see the group I encountered as rather extreme. Yet the majority of Americans have enacted marriage laws that reach the same conclusion for intersex people: marriage is only acceptable between a "man" and a "woman." The fact that I'm neither by birth is some sort of unfortunate, bizarre accident. Doctors can be relied upon to pick the right sex for intersex babies, and that should clear the whole problem up.

But even doctors aren't so sanguine.

Doctors warn of a "risk of homosexuality" for babies born intersex.

Yes, you heard that right. Just read about some "DSD" or other and you'll see it there. Take congenital adrenal hyperplasia, or CAH, which is often manifested in the birth of a child with a penis outside and uterus and ovaries inside. Medical texts regularly state that "even with surgical and pharmacological treatment, CAH girls are at risk of homosexuality." In fact, there is now a highly controversial prenatal treatment program led by endocrinologist Dr. Maria New, intended to influence genital growth in CAH XX infants, so that they're born looking more like a typical female--and it is being reported not as an attempt to prevent intersex births, but as an attempt to "prevent homosexuality." You can check that out here. What a confusion of intersexuality and homosexuality! (And how eugenic. . .)

I have to ask you, from the perspective of birth sex, how can an intersex person be homosexual--unless they only have sexual relationships with other intersex people? Of course, birth sex does not dictate how sexual orientation is experienced . . . but doctors misapprehend how this works.

What the doctors really mean with regard to children born with XX, CAH is this: they take babies born with what are often totally average-looking penises, but internal "female" organs, and they cut their penises off. (The call this "clitoral reduction" nowadays.) They prescribe the children testosterone-suppressant drugs. They tell their parents, "See, you have a girl!" But the parents know the children are intersex--they saw them born with phalli. The children know they're intersexed--they bear the scars, they take the daily meds, and are forced to show their genitalia to doctor after doctor. Of course these children often grow up with gender identities and behavior that differ from "normal girls."

Apparently we intersex people often freak doctors out once we're not cute little tots over whose bodies they have vast power. They take an intersex baby with CAH, give hir sex assignment surgery, and want to believe that having sculpted a vulva-shape in hir flesh they'll have guaranteed hir a future of "normal womanhood," stereotypically defined as involving no great interest in sports, but lots of interest in fashion and boys. Sometimes their patients grow up into the pink feminine heterosexual icons of the doctors' imagination, expressing nothing but gratitude for the removal of those embarrassing "pseudophalli."

And sometimes CAH intersex patients show up in the doctors' office as depressed or angry teens in short hair and jeans. Maybe they identify as male, or as genderqueer, or as tomboys--doctors don't seem to ask about gender identities or if anyone wanted to keep that penis they had been born with. What they do ask about is sexual activity, and if the patients are involved with boys or girls or both.

The data they collect is pointless.

Without knowing gender identity, you can't tell someone's sexual orientation. Take two people with the same CAH bodily configuration, and one can grow up to identify as female and the other as male. If a person identifies as male and only wants female partners, his sexual orientation is heterosexual. But the doctors will label this person "homosexual," because they assigned him to be female, and they don't ask if that's the gender identity he actually grew up to have.

Doctors are acting just like the Christian sectleader I spoke with at my university. Intersexuality is a mistake, they say, unintended by nature. Doctors have the godlike power to divine the "right" dyadic sex for intersex babies, and correct their faulty bodies. And the "normal" thing for these intersex children to grow up and do is to marry a person of the sex other than the one the doctors picked for the child.

What does this all mean for me?

My spouse and I were both born intersex. I was assigned female at birth, and she was assigned male (I escaped surgical intervention but she was surgically misassigned, to her lifelong regret.) According to the sexes doctors put on our birth certificates, we are a "heterosexual" couple, though we share a physical status. Had we both grown up to identify with the sexes we were assigned, our intersexuality would be invisible to society--as both doctors and Christian antigay activists would wish it to be. We could have married and disappeared into the suburbs. Biologically speaking, we would not qualify as "one man and one woman" for marriage, but nobody would ever have raised a stink, so long as we accepted our lot and kept quiet about our birth status.

But we did not identify with our sexes of assignment. Eventually, we both found the strength and resources to enter the gender transition process. This has come as a great relief to us both, though it hasn't made our lives easy (read my last post to hear more about that). If transphobia were not the huge barrier that it is, and gender transition services could be easily accessed, and insurance covered the medical expenses, and the legal hurdles weren't so high, my spouse and I could have done a simple if ironic do-si-do and would now be married as a man and a woman.

Gender transition being the long, drawn-out, expensive, legally-convoluted process that it is, however, according to our birth certificates, we're both "male." No matter that my spouse was never biologically male. No matter that she has breasts and gets a menstrual period. No matter that she has identified as female since the age of 3 or 4. No matter that her driver's license reads "F."  Because she already had genital surgery in infancy, and is considered a "poor candidate" for further surgery, and wouldn't want it in any case, given the sensation she already lost in the first round, she can't change her birth certificate, and in Wisconsin, sex for marriage purposes is based upon birth certificate sex.

So: one thing we're dealing with now, despite the fact that we live as a married man and woman, is we are currently, according to our birth certificates, in a same-sex marriage. At the time we got married, my legal documentation still listed me as female, so getting hitched was unproblematic--but at the moment we look different on paper. And since we went to San Francisco to get married, someone could now threaten us with that $10,000 fine and/or 9 months in jail Wisconsin law allows. We share this unhappy situation with other LGBT couples in Wisconsin who found routes to marriage, and I have great sympathy for them all.

Even if we were able to change my wife's birth certificate some day, and we're no longer a same-sex couple on paper, we won't be safe. Because we're open about having been born intersex. Because we gender transitioned, and people know that. Because we're visible, we'll always be vulnerable to harassment by some bigot who wants to argue we're not "one man and one woman" and try to invalidate our marriage.

Intersex people having to deal with marriage restrictions is not some abstraction or game.

It's nervewracking stuff, and it's my lived experience. Sometimes well-intentioned people who want to construct arguments against "same-sex marriage bans" bring up the idea of intersex people like some sort of abstract theory. Take, as just one example, this post entitled "Common Arguments Against Gay Marriage." A section titled "Hermaphrodites" poses intermediately-sexed bodies as a hypothetical and asks how "feminized" a "hermaphrodite" must be to be permitted to marry a man. The blogger gets excited about this just-so story, and states, "This is a type of sorites paradox. Traditional sorites paradoxes involve asking how many grains of sand you have to remove from a pile before it stops being a “pile,” or how many pounds a fat person has to lose before they are no longer “fat.” These are paradoxes because they involve characteristics which are vague — it’s not clear where a pile or fatness begins and ends."

Yes, this hypothetical of the Incompletely Feminized Hermphrodite follows the slippery slope, sorites paradox argument format. But we are not mythic creatures in some ancient Greek story Zeno might tell of arrows that get halfway to their targets. We are not some illustrative fable. In writing about intersex experience and one-man-one-woman marriage limits, I have to raise this issue, because I know there are other intersex people who are livid at how people who are supposedly our allies treat us--so angry that they think the intersex community should refuse to enter public discussions about how marriage restrictions affect us. I agree that we have been treated rudely, our bodies seized upon as fodder for arguments by people ignorant of our painful real life experiences. It's depressing.

But the fact that our lives have been appropriated by others should not silence us. And so I am speaking out, and asking for something simple.

I am a human being, and I ask for respect.

All bodies deserve respect. Intersex variations are not lusus naturae, medical defects, the wages of sin, or mistakes unintended by God. Sex is a spectrum by nature, and everyone's body is a gift.

All loving relationships deserve social support. To believe that it is ungodly of me as an intersex person to get married to a man or to a woman because the sex I was assigned at birth did not match the gender identity I developed--that is a failure to understand and embrace a God of Love. To grant or deny people the right to marry based on their sex or their gender is simply wronghearted. All people--straight and queer, trans gender and cis gender, intersex and dyadically sex-normative--should be treated with dignity when they commit to love.

For a person to be threatened with imprisonment for daring to marry . . . now that is moral evil.