‘Gay’ Marriage: Are We All Missing The Point?

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The debate over ‘gay’ marriage isn’t about sexual orientation, it’s about gender, says Lyla Cicero.

Most people believe the current gay marriage debate is about whether gay people can legally marry. In actuality, nowhere in the U.S. does sexual orientation have any bearing on marriage legality. A gay man and a lesbian could waltz up to any justice of the peace in this country, in any state, wearing matching rainbow leggings, carrying pride flags instead of flowers, and tie the knot, no questions asked. Constitution upheld, fabric of society unscathed.

The truth is, Proposition 8, DOMA, state marriage amendments, Chris Christie’s veto in NJ, the Pope, the protests, and the two major Supreme Court opinions received today aren’t about gay or marriage at all. They’re about gender. The act struck down by SCOTUS today might more appropriately be called DOGA: the “Defense of Gender Act.”

If the introduction of “gayness” into marriage was really what folks in California, and elsewhere, wanted to prevent, then why do we allow the many mixed-orientation marriages that occur all over the U.S., many of them involving children? If “gay marriage” isn’t about gay people getting married, then what is the “profound redefinition of a bedrock social institution” Mr. Cooper, legal counsel defending Proposition 8 (the California same-sex marriage ban) was debating with the supreme court justices back in March? Mr. Cooper’s argument wasn’t about gay people at all. He repeatedly referred to “redefining marriage as a genderless institution.” Mr. Cooper was arguing a case for upholding the gender binary.

I believe it is no accident that that same week, Arizona legislators were falling all over themselves to legally require people to pee in the right bathroom. While all things gay become increasingly mainstream, we are going out of our way to police gender. 

Did you know you can fill out a simple half-page form, and with the signature of a mental health professional such as myself, change that little F to an M, or vice versa, on your driver’s license? With that gender marker changed, a “gay” couple could conceivably morph into a “straight” one and walk away with a marriage license that same day.

The dirty little secret of the marriage equality debate is that the entire concept of sexual orientation, and “gay” marriage with it, rests precariously on the back of an increasingly erroneous idea: that we can divide people into two genders. The fact that a therapist can sign away a person’s gender drives home the futility of clinging to a gendered definition of marriage. The best argument against defining marriage as between a man and a woman isn’t about gay rights at all, it’s about the faulty notion that gender is a stable, discernible construct that can be legislated. 

All laws based on gender exclude and render invisible those citizens who cannot be clearly assigned a gender or, in some cases, a biological sex. Consider the laws that segregated people by race, and the arguments used to eliminate them. Now imagine there was a sizable group of humans who literally had no race. How much more precarious would those laws have seemed then?   

According to biologist and gender scholar Anne-Fausto Sterling, around 1.7% of the population has some form of intersex condition in which their biological sex is not definitively male or female. This is the same percentage of people who identify as Jewish. Imagine a legal debate over a law that flagrantly discriminates against Jews being argued on other grounds all together, with those Jews themselves never brought to the table or even mentioned.

At the Proposition 8 hearing, Mr. Cooper stated, “…redefining marriage as a genderless institution will sever its abiding connection to its traditional procreative purposes…” This argument reveals another fundamental misunderstanding of the realities of gender in our time. I wonder if Mr. Cooper has ever met a pregnant man? If a person with female internal anatomy legally transitions to male, and then enters into a same-sex marriage with another man, the two men could have biological children together. By legal standards, this is a “gay marriage.” 

If, however, that transman married a cis-gender (biological sex and gender identity are the same) woman, this would be a state-sanctioned, old-fashioned, “straight” marriage between a legal male and a legal female. The two could not, however, have a biological child. There are literally dozens of examples like this that render “gay marriage” laws as absurd as laws trying to force people into to the correct bathroom.

In truth, defining marriage as between a male and a female bestows marriage rights on people of any sexual orientation who can 1) prove male or female gender and 2) prove “opposite” gender of the intended spouse. These laws deny marriage rights to people of any sexual orientation who 1) can’t prove their gender or 2) can’t prove “opposite” gender of the intended spouse, including people who are intersex, transgender, and those who identify as androgynous, genderqueer, pangender, neutrois, third gender, two-spirit, bigender, and those who have legally changed gender, or changed from gendered to non-gendered.

We won major victories today over DOMA and Prop 8, laws that discriminate against gay people by policing the gender of their intended spouse. But for a little-recognized portion of the population these laws do something even more insidious: They deny their very existence. They legislate male and female as the only valid genders. Arguments for severing gender from marriage related to gay rights are valid, important, and have gotten us this far. However, to truly win this fight, including winning marriage rights in the 38 states that still lack them, the rights of our gender non-conforming citizens must be a part of the debate, and a part of the solution. It’s time to demand that the denial of marriage rights based on gender identity—an issue conspicuously absent from the recent supreme court proceedings—be at the forefront of the marriage equality movement going forward.

Lyla Cicero has a doctorate in clinical psychology, and focuses on relationships, sexual minorities, and sex therapy. Lyla is a feminist, LGBTQIAPK-affirmative, sex-positive blogger at UnderCoverintheSuburbs.com, where she writes about expanding cultural notions of identity, especially those surrounding gender, sexual orientation, motherhood, and sexuality. Follow her on Twitter @UndrCvrNSuburbs.

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