Patricia Nell Warren

Gender, gay marriage...and Galileo

Filed By Patricia Nell Warren | February 06, 2008 2:34 PM | comments

Filed in: Action Alerts, Living, Marriage Equality, Politics, Transgender & Intersex
Tags: gender issues

The righters are stamping their foot again, to keep marriage "a man and a woman." Next week, on Feb. 11th, the Arizona State Senate Committee on Government will vote on a bill that would write marriage discrimination into the state constitution. This latest round of hissy fits reminds me how the Roman Catholic Church used to stamp its foot when anybody challenged the old scriptural notion that Earth is the fixed center of the Universe. When Galileo completed his years of patient observations with a telescope, proving that the Earth actually moves around the Sun, Pope Urban VIII simply screamed, "The Earth does not move!" In 1633 the Inquisition declared the great man a heretic and put him in house arrest for the rest of his life.

"But it does move," Galileo supposedly muttered under his breath, after he was forced to recant. Today we know that Galileo was right.

Today, the advancing science of gender -- and how it will affect our legal concept of marriage -- is challenging church authorities in the same massive way that Galileo's discovery did. They're treating new gender knowledge as heresy (though they don't dare call it that). In my opinion, these unbending church attitudes -- and the state and federal laws they're prompting -- will crash on the same rocks of evidence where wreckage of other churchy notions has piled up for centuries. The fact is, gender cannot be scientifically defined the way the righters want to define it...any more than the universe could be defined the way the medieval Church insisted.

If a "man" and a "woman" can't be forensically defined the way the church people insist, marriage can't be defined that way either.

When the existence of XX and XY sex chromosomes were first discovered in 1905, they instantly were seen by many as Adam and Eve's reflection in DNA. Then the biblical notion that "Eve was created from Adam's rib" went on the rocks, as scientists learned that XX, not XY, is the default gender. Starting in the mid-1900s, research kept pushing deeper into this gender frontier, farther and farther from orthodox Christian teaching.

In my research on LGBT sports history, I found gender emerging as a major issue, equal in importance to sexual orientation. Starting in the 1960s, sports bodies all over the world wrestled with scientific challenges to their chromosome testing of women athletes and their blind belief that "real women athletes have to be XX." Indeed, I noticed that antiquated ideas about gender -- which were accepted in sports as the poster image of "male" and "female" -- often determined how LGBT athletes were treated, and whether they were allowed to compete.

By the 1990s, the International Olympic Committee had to bow before the evidence piling up. Beyond that growing list of women whose tests hadn't come up XX, there loomed a vast range of variations that science had now identified. At some point the IOC may have started wondering how many male medal-winners could pass a chromosome test! There are 47, XXY's and 47, XYYs. XXXY's and XO's and XXYY's. Not to mention XYs born without the gene that turns on the androgens. And mosaic XXYs who have XX chromosomes in some cells, and XY chromosomes in others.

In 1999, the IOC finally had to admit that their testing policy for women athletes was scientifically ridiculous. Athletes were fed up with the testing, and angry about it -- enough of them to leverage the international sports bodies. Athletes damaged by the policy were suing the IOC, and winning. So the IOC voted to discontinue testing on a trial basis.

During that same year, 1999, the 4th Texas Court of Appeals went the other way, with a decision that has become case law. In Littleton v. Prang, Judge Phil Hardberger wrote an opinion that boiled down to this: unchangeable XX and XY sex chromosomes, not genitals (which can be altered by surgery), are the basis of legal definitions of gender. The decision denied validity to a marriage in which one of the two partners had gone through a surgical gender reassignment and obtained a new birth certificate Judge Hardberger didn't even bother to ascertain the actual chromosome identity of either husband or wife, and he was clearly ignorant about half a century of scientific discovery that gender is not something you can put in a box.

It took three and a half centuries for the Catholic Church to admit they were wrong about Galileo. But in 1979, Pope John Paul II finally ate crow on this issue. Let's hope we don't have to wait that long for our self-appointed American Popes to admit they're wrong about gender.

I think we are still in the early stages of discovering the human universe, the way Galileo and Kepler and other astronomers were starting to discover our solar system during the Renaissance. Today we are getting more familiar with that planetary system of ours. It seems more intimate now -- NASA can land robots on distant moons and asteroids, and the Hubble telescope can look closely at Pluto and capture fuzzy images of other systems way, way out there in other galaxies where other planets are moving around their own stars. But there's still a lot to discover about humans right here at home. And that includes "gender realization."

Our country is now defining gender and marriage strictly as an XX-XY deal. That is a horrible human-rights mistake. As it did to the couple in Littleton v. Prang, this legal position could invalidate thousands of marriages. If pushed into legislation, it would bar from marriage hundreds of thousands more persons who are born with sex-chromosome variations. For 47,XXY alone, the figures are one in every 500 live births. With the U.S. population topping 300 million, that is 600,000 people who are 47,XXY. Add in the other variations, and you have millions of Americans who could be denied the right to marry -- most of whom probably don't identify as gay or lesbian or bi. So this is not just a "gay issue." With time, these millions of disenfranchised Americans may be angry enough, and activist enough, to demand change.

Several other recent court decisions also came down in favor of chromosomes. But these opinions are hopefully setting the stage for a trial of the century. The right case, the right lawyer, the right expert witnesses, and a judge who isn't living in a Bible bubble, could shatter the religious right's notion of "gender heresy," and leave it on the wreckage heap of history, along with the Earth-centered universe. Hopefully, when that happens, even a conservative U.S. Supreme Court would have to agree. They'd look really stupid if they didn't.

The rights and benefits of marriage must be opened to all, regardless of which chromosomes or how many chromosomes they might be born with, and whether they ever have surgery or not. I suppose our country will still cling to the legal formality of M or F -- but at least people would have freedom and flexibility about how they choose to identify.

That legal victory would logically have to open the rights and benefits of marriage to same-gender couples as well. Indeed, the gender issue -- which is being kicked to the curb as an alleged political liability by some gay activists right now -- may well be won in the courtroom, not at the polls or in the legislative arena. Gender may well become the cutting edge of victory for us all.

For those who want to take action on the Arizona Feb. 11th hearing, go to Equality Arizona.

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Thank you. You brought up all the things I've been saying for years. No one wanted to listen. Many leaders in the trans community don't want to push this issue because that would mean that someone would decided what is a man and a woman and screw over trans people.

No matter what anyone wants to use to define man and woman, there is always exceptions that screw up the definitions. You brought up chromosomes, and I always ask what are the sex of all of those people who are not XX or XY? And, what about the female-bodied people with XY and the male-bodied people with XX? (You mentioned this.)

When the bigots here in Georgia were pushing for our anti-same-sex marriage amendment in 2004, I tried to get Georgia Equality to push for them to define man and woman by chromosomes. First, it would have thrown those red-neck nit-wits in the State Assembly for a loop, causing them to argue about it until the session was over. We only have a 40-day session. But, I was told by one of our supportive Senators that if he would have brought it up, it would have cause caos. Hell, that was the whole F---ing idea!

If they did define it by XX or XY chromosomes only, then can you imagine what would have happened if a loving religious right couple applied for a marriage license and when they got the test, they both had the same chromosomes?

There is one other little killer point to chromosomes. Every person would have to get them tested to verify they could get married. The cost for those tests are from $650 to $850 apiece. Can you imagine a young rural couple being told they have to shell out another $1600 before they could get a marriage license?

If the State legislators added the chromosome requirement to the law, that amendment would have been pulled in a heartbeat. They would not only would have screwed over their constituents, but even given some loving LGBT people a ticket to get married legally. But, the gay leaders at the time thought they had all the answers and didn't want to listen to the trans leaders.

If you seleted birth certificates, then that could screw over non-LGBT people as well. Not everybody can put their hands on their birth certificate for a number of reasons. And, transsexuals can change their birth certificate after surgery in 47 states. Some states do not put a person's sex on the BC. Others will not list one if the person is intersex and has ambigious genitala.

Speaking of genitala, that wouldn't work either. Too many people have ambigious genitila. Also, if a man lost his penis in an accident or at war, would he no longer be a man? Besides, are the license clerks going to do a panty check before they give you a license?

If gays and lesbians in those states would have listened to their trans brothers and sisters, there wouldn't be as many anti-same-sex marriage amendments in this country as there are today. The arrogance of those G&L leaders in those states made the problem worse.

Don Sherfick Don Sherfick | February 6, 2008 5:12 PM

Fascinating article, Patricia, thank you. You might want to check out the link you provided at the end though. I keep getting an "invalid link" message when I try to follow it.

The link works on my browser, and it worked when Equality Arizona gave it to me. I'm asking Bilerico for help getting it to work, so be patient, and try it again in a little bit.

Patricia, I have a story from a personal friend of mine regarding Galileo that I think you'll enjoy. I hope I get the details right. You may find this story difficult to believe, but I swear I tell it exactly as my friend told it to me.

After Galileo's death, he was first interred in Italy, but his body was later moved to Westminster Abbey, where it lies today.

While his corpse was being moved, the right middle finger fell off. The finger was placed in a vial of preservative fluid and is now on display in a science museum adjacent to the Westminster Abbey complex.

My friend was on a visit to England a few years ago, and roamed through the fascinating science museum there. He was in the museum only a few minutes when he got into a conversation with one of the museum curators there, and they seemed to hit it off. In short order the curator was giving my friend a personal tour of the museum's most interesting highlights. In time they came upon the display case where Galileo's finger is kept, and while there the curator excused herself briefly to handle a quick workplace matter. My friend got an idea, pulled out his pocket compass and his map of Europe, and checked them carefully ...

When the curator returned, he asked her if she might open the case and rotate Galileo's digit so that my friend might get a better 360-degree view of it. She gladly complied, and rotated the vial slowly until he asked her to stop, then she re-locked the case.

In the same spirit with which he muttered "But it does move!" under his breath, Galileo might now be similarly pleased. My friend assures me that the dorsal side of Galileo's right middle finger now faces directly toward The Vatican.

Here's something to think about.... The state has no business regulating marriage..... Not gay ones.... And not straight ones either..... Instead of begging for access to the same control mechanism that already burdens heteros, we should be working together to become free.... A lot of heteros will tell you, marriage isn't worth the fight.... And would happily stand up with us to abolish the institution altogether. What can I say, freedom is popular. Libertarian is the new Liberal, pass it on!!!

MauraHennessey | February 7, 2008 10:15 AM

Alas for the tale, the body of Galileo lies in the Basilica di Santa Croce in Firenze(Florence) Italy where is was interred by Ferdinand de Medici. I've no idea whether his finger made it to the UK

Actually, I like the Littleton vs. Prang decision, because it means, if I find a woman that I love enough to marry, I can go down to north San Antonio and marry her, and there is nothing the rednecks can do to stop two women from getting married there.

I already know of a few in the trans community here in Austin who have taken that trip. For once, the bigots own prejudices have backfired on them.

I should have known better than to post the finger story without doing my homework first. Maura is correct --- Galileo is buried at the Basilica di Santa Croce in Florence, Italy. But originally he was buried elsewhere, and his corpse was moved to the Basilica in 1737. It was during this exhumation, apparently, that his right middle finger was removed.

I'll post again when I have all the facts gathered together (like I should have done in the first place). However, by then this thread will be as cold as a January midnight skinny-dip at Prudhoe Bay.

For those who are interested, a great legal analysis concerning gender and same sex marriage:

Does a marriage really need sex? A critical analysis of the gender restriction on marriage.

From: Fordham Urban Law Journal | Date: 9/1/2003 | Author: Frankle, Randi E.

This one is a keeper.