This column was published in The State News in the 23 September 1999 edition.
There's an interesting case (Littleton v. Prange) wending its way through the courts in Texas.
A woman's husband of seven years died. She sued her husband's doctor, alleging negligence. The doctor says the woman (who is transsexual) is not entitled to any benefit as a surviving spouse because the marriage was actually between two men and so is void. The case is now before the 4th Court of Appeals in San Antonio, Texas.
When the law deals with concepts such as sex or race, it rarely defines the terms used. The U.S. Defense of Marriage Act ("to define and protect the institution of marriage") states: "...the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
Neither that act, nor any other accepted and court-tested law, further defines what is meant by 'man' and 'woman'. Of course "everyone knows" what it means to be a man or a woman, but as the Texas case shows, this isn't always enough.
Should this issue concern you? What are the odds that you will ever encounter a person whose sex might become a legal question? I'd say the odds are pretty good that at some point in your life one of these folks will cross your path.
You may have heard of people such as Billy Tipton, the jazz musician who lived most of his life as a man, but was discovered upon his death to be anatomically female. If you follow sports, you know that sometimes it is the sex of an athlete that is contested. A small percentage of infants are born intersexed, and perhaps arbitrarily assigned a sex and a gender. There are transsexual men and women among the students, staff, faculty, and alumni at MSU.
What is sex, anyway? Why isn't it always obvious whether a person is male or female?
Genetics is the basis for sex differentiation, but it isn't as simple as an XX karyotype being female and an XY being male. Those are the most common, but on occasion one finds XO, XXY, XYY, XXXY, XXYY, XXXYY, or both XX and XY. It is also possible for a gene to travel to another chromosome, which can result in a male who has an XX karyotype.
A human embryo is poised to develop as either female or male, and will develop as female unless a gene on the Y chromosome causes gonadal tissue to instantiate as male. Once the gonads develop, hormones trigger development of the embryo in a series of stages that result in what we call female or male internal and external organs and appearance. There are many interlocking steps in this process, with many opportunities for the result to be other than what we stereotypically expect. Variation is normal for biological systems.
Although estrogen has been labeled the female hormone and testosterone the male, bodies produce and need both for normal operation. Hormones are produced and changed in many sites in the body, not only in the gonads. Both males and females have hormonal cycles, and the production of hormones varies throughout a person's life.
Okay, the human body is astoundingly complex, but doesn't sex finally come down to, you know, what's between a person's legs? Whether a person has an innie or an outie?
Usually, though a significant number of people don't look the way down there that you've been led to expect. The great cultural taboo against seeing anyone's genitals has kept this fact hidden, but there is every bit as much variation in genital appearance as there is in that of any other part of the body.
It's kind of like being left-handed or right-handed. If you want to divide people up that way, you can, and you can make statistical statements about handedness in a population. But no matter how careful you are, there will be some individuals who are neither, some who don't agree with the way you label them, and some who change during their lifetime.
For more information on the fascinating topic of what determines a person's sex, I suggest a book of essays edited by Alice Dreger (Assistant Professor in the Lyman Briggs School at MSU) titled Intersex in the Age of Ethics. Dr. Dreger's previous book, Hermaphrodites and the Medical Invention of Sex, is also a must read.
Do we really need to label a person's sex? If it is so difficult to draw this line in the murky complexity of a human being, why draw the line at all?
Why don't we just do away with the idea of sex? Not with the idea that individuals differ, but with the idea that we each must be labeled as female or male, and woman or man.
On how many of the applications and forms that you fill out in your life does it actually make a difference whether you check the M or the F box? Why does the state need to put the M or the F on a driver's license? Why must MSU note your sex as part of its academic and employment records?
Does it help or hinder the cause for equal treatment of individuals if one can always tell to which class a person belongs? How much of one's life should depend on membership in a class to which one is assigned at birth? What is really at stake in Littleton v. Prange?