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Gender, Law, and Marriage: We've Got a Ways to Go

Gender, Law, and Marriage: We've Got a Ways to Go

"How do we define legal gender? By chromosomes? By genitalia? By spirit? By whether one asks directions when lost?"

A fascinating essay written by a transgendered woman underscores the complexity of gender identities in the US along with analysis of how the arbitrariness of marriage laws ignores that reality.

Jennifer Boyland and Deirdre Finney got married in 1988, at which point Boyland identified as male. By 2000, Boyland had begun transitioning to female. Deirdre remained married to her, which meant that, technically, they were in a same-sex marriage in a state that didn't recognize them at the time. (Maine has since became the fifth state in the US recently to recognize same-sex marriages.)

Imagine, if you will, basically being unrecognized by a government you elect and pay taxes to. To find out some of the more absurd cases,


  • Some states don't recognize sex changes. So if Boyland moved to such a state, she would only be able to wed another woman. (Try getting your head around that for a moment.)
  • J’noel Gardiner in Kansas, a postoperative transsexual woman, married her husband, Marshall Gardiner, in 1998. When he died in 1999, she was denied her share of his $2.5 million estate by the Kansas Supreme Court on the grounds that her marriage was invalid.
  • A 1999 ruling in San Antonio (Littleton v. Prange) allowed marriages only if the parties had different chromosomes. This meant that a lesbian could marry a transgendered male-to-female or a woman with androgen insensitivity syndrome. (People with AIS are genetically male, with one X chromosome and one Y chromosome in each cell, but because their bodies are unable to respond to certain male sex hormones, they may have mostly female sex characteristics or signs of both male and female sexual development.)
  • Her lawyer drew up this dizzying hypothetical regarding the law's absurdity with respect to her identity: ". . . Mrs. Littleton, while in San Antonio, TX," he mused, "is a male and has a void marriage; as she travels to Houston, TX, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

It seems about time that citizens with gender identities that don't fit into the rigid binary male or female are recognized with respect by the law. Here's to hoping we get there soon!


Join The Conversation
sloane220 sloane220 8 years
sorry for the grammar mistakes but i think you get the gist.
sloane220 sloane220 8 years
hainan, first of all, carrie prejean brought all that criticism on herself by choosing to openly express her bigotry towards gays. being against gay marriage is nothing but plain old fashioned homophobia, because there's no RATIONAL (religious beliefs are not rational which is why there's supposed to be seperation of church and state, and religious freedom so that no one can impose their religious beliefs on others) reason to be against it. and i don't buy that religion bullshit because because are STILL using religion to excuse slavery and justify being against interracial marriage, but we call those people what they are: ignorant and bigoted. she got what she deserved and she should have gotten worse, she should have lost her crown. society should continue to censure people who ignorantly blurt out these views, so maybe they can begin to rethink blurting them out and start to realize that they're contributing to atmosphere of discrimination and ignorance in society. second, i'm a lesbian and i take offense to the characterization of my sexuality a chemical imbalance. yes i believe there's a biological reason for my being a homosexual but it's outrageous to suggest that it should be viewed as a detrimental defect. i view it as a facet of being, one of my personality traits, not in the same category as a mental illness where heterosexuality is the norm and homosexuality is the abnormality. homosexuality IS normal, and has existed in some shape or form since the beginning of humankind. there was a place made for homosexuals and gender variant people in many societies until religion began stigmatize gay people. if you knew anything about the kinsey scale, you'd know that most humans, male and female fall somewhere in the middle with many people, even those who identify as straight and gay having feelings to some degree for both sexes.
omigosh omigosh 8 years
thanks bgorgeouss! :)
bgorgeouss bgorgeouss 8 years
Hainan, maybe you should get your facts right before posting such a harsh message for omigosh. Carrie Prejean is working with the National Organization for Marriage, and is publicly advocating against gay marriage. You can read more about it here: ( She has also been on TV shows ( like the Today Show on NBC) to talk in support of the National Organization for Marriage.
omigosh omigosh 8 years
Right... well the last weeks in the media she has been going on all these tv shows to promote how she is against gay marriage. And if you read my message carefully, I did in fact say that it's wrong to attack her and say mean things about her. I don't see how I am 'crucifying' her. All I'm saying is that I wish people would use their efforts in doing something positive for others. And she is not doing that.
StolzeMama StolzeMama 8 years
Why do you think she is spending all of her time and energy trying to prevent gay marriage. All she did was say that she doesn't think marriage should be same sex. She is not out advocating her view. She is not a part of any groups regarding it. She simply stated her belief. Let's burn her at the cross for that. You are quick to judge her and say there are better things she should be doing with her time. When you don't know anything about the girl other than she said she is against gay marriage. It's absurd. And I don't see how you can say she is "trying" tp make others lives miserable, when all she did was state her opinion in accordance with her religious beliefs. If there wasn't the ability to answer that question honestly, it shouldn't have been asked. You cannot crucify her for simply stating her opinion, which is ALL she did. So please if you could give examples of how she is actively going out trying to ruin peoples lives. If you don't have one you should keep your mouth shut about it. Because last I heard she hasnt done anything except for say that she believes marriage is between a man and a woman. Also there are a lot of people who believe that the state should only recognize civil unions and not marriages. That a marriage should keep with it's traditional definition. Yet maybe you are to shallow minded to see that just because someone is techinically against gay "marriage" doesn't mean they are trying to ruin others peoples lives. I think it is you and people in the media that are trying to ruin her life simply for stating her beliefs. You and those people are bigots equal or more so then the people you criticize.
omigosh omigosh 8 years
Hainan, I agree that people shouldn't bash Carrie for her beliefs. If she wants to think that gay marriage is wrong, fine. But she (an others) spending all this time and money to keep gay marriage illegal is just unacceptable to me when you could be using that energy to do something GOOD for humanity. Why is she trying to make other people's lives miserable when she could be supporting charities.
StolzeMama StolzeMama 8 years
First of all I said trans gendered people have chemical imbalances I was not referring to gay people in general. I am only speaking for myself and not for the first person who wrote that. Secondly in reference to omigosh- you don't know why someone would put effort into making others unhappy, but yet that is EXACTLY what people are doing to Carrie Prejean. Doing everything they an to invalidate her. I can't believe that isn't more upsetting to feminists. They asked her a question and she gave her opinion. Now she is the enemy. I just don't get it. It is sickening the way people are treating her, even more so then not allowing gays to marry. People are attacking her personally and she may suffer from the crap people have said for a long time. Someone can't get married vs ruining someones image/career for life. No comparison to me. But it seems a little hypocritical for you to say that we shouldn't try and make others unhappy unless it is someone who doesn't agree with your views! UGH!
omigosh omigosh 8 years
i wish the world would just get over it and allow marriage for everyone despite their race, sex, gender, sexual preference etc... why the hell do you care if a lesbian couple gets married, or a transgender couple? how does it affect your life? ..sorry for the rant. but this issue is just so frustrating to me! i dont understand why people would put effort into making others unhappy. like carrie prejean, seriously.
sarah100682 sarah100682 8 years
As far as "chemically imbalanced" goes. It is fact that some people who are homosexual have chemical imbalances...there is no debate on that. It is proven. The real question is, does the chemical imbalance have anything to do with them being homosexual? Is it caused by something comepletely different? Who knows. Lots and lots of people who are heterosexual also have chemical imbalances. It's nothing to be taken in a disrespectful way when we talk about fact. Symphonee is correct. There is nothing conclusive, it is purely a theory amoung many many others. I don't understand why some are getting bent out of shape over a term, ecspecially when those things are proven to sometimes be present...but as a said before, there is no proof that the chemical imbalances have anything to do with sexuality.
Pistil Pistil 8 years
I think I would define a chemical imbalance as something that prevents someone from functioning normally, but then normal cannot be easily defined. And mentally ill... even that's a fine line. I think it's the ultimate case of "I think therefore I am" --I'll never know anything beyond my own experience of the world. Which is fine and all, until you throw the law/government into it.
genesisrocks genesisrocks 8 years
Agree with Margo, you said it perfectly! As far as the whole chemical imbalance debate goes, it's not like they're mentally ill so who's to say they should be treated for that.
Symphonee Symphonee 8 years
I am thoroughly sick of this topic on Sugar. Sex is in the chromosome. If you are male to female or female to male, it does not change the fact that you had to have hormone replacement and surgery to align you with the gender you chose(or felt that you were born as). Male and female starts as nature, nothing we do will change that. If a transgendered person wants to use a public restroom that is specifically for the gender that they feel they are, fine I am okay with that. Marriage is a different story because of my religious beliefs. I fully support civil unions with the same benefits as married couples But I believe that it can not be a marriage. The studies that everyone is referring is not entirely conclusive. There have been studies among twins to show that it is not entirely in the genes or caused by chemical imbalances.
morninghurts morninghurts 8 years
A friend of mine who is transgender is having problems with her state recognizing her marriage. And thank you bgorgeouss for writing that. I had typed out what I wanted to say in regards to "chemical imbalances" a couple times but didn't think I had it put to words as well as you did so I hadn't posted it yet.
bgorgeouss bgorgeouss 8 years
I don't think calling the differences in the brains of gay, lesions, transgender etc. a 'chemical imbalance' is correct OR respectful. It's not a chemical imbalance, it's just a difference from their straight counterpart. Studies have shown that the brains of gay men are more like the brains of straight women than straight men (as in, the locations lit up in the brain in the presence of certain exciting stimuli are similar to women). This doesn't mean that they have an imbalance that makes them 'mentally ill', it just means that they are different from what is considered the norm for a male. Such differences from the population norm may occur in any persons brain (whether straight, gay or transgender) and the definition of mentally ill does not include these variations. To define someone as mentally ill means that they are impaired in some cognitive or functional way, and these people are surely not impaired and can lead normal and healthy lives. As for the law about marriage, I agree with margokhal. If one state recognizes the marriage, then other states should recognize it, even if they don't agree with it.
sarah100682 sarah100682 8 years
margokhal hit the nail on the head. And it is true, some studies show that gay, lesbians, transgender, etc...have a chemical imbalance. But a few things to point out...1) A chemical imbalance does not necassarly make you mental ill, although it can, so to say that someone is mentally ill because they are gay is a bit silly...2) It's little the chicken or the egg theory...which came first? Does the chemical imbalance cause you to be homosexual, or does homosexuality cause the imbalance? We may never know. I have to admit, I do not understand being gay. I don't get it and doubt I ever will, but that's okay, I don't need to understand it. I completely respect the decision that people make, whether it to be straight, gay, bi-sexual, whatever. Who am I...or who is anyone else for that matter, to tell someone else how they should or should not live there life?
StolzeMama StolzeMama 8 years
And Sarah, I agree with DannieS. I have seen studies that she is referring to. And they do say it is a chemical imbalance. So you can think it is highly offensive to say that but there are studies to back it up. That might be like saying that if I think I am Barack Obama and should be entitled to the life and all amenities he has and if anyone questions me it is highly offensive. If it was I truly feel I am, right?
StolzeMama StolzeMama 8 years
I think that states should have the right to recognize what ever marriage they choose. The federal government, however, should recognize and offer the same benefits to any married couple. Or civilly unioned couple. The federal government should not be giving any tax benefits or penalties based on marriage. That is just one more thing that this giant of a federal government has to do and it is not how our country was created. A fair tax system is the only way our federal government wouldn't be able to abuse it's power by taxing the individuals they deem fit. So people need to think about the state having a right to recognize a marriage or not and what our federal government has turned into that has given some the ability to take advantage of an interpretation in the constitution and change it so it isn't even recognizable any more. The federal government should not be in the business of determining what states do and which of their laws they choose to recognize. UGH
reesiecup reesiecup 8 years
margokhal, you said it perfectly: gender is socially defined and sex is biologically defined. Obviously, marriage is socially defined and laws are also socially defined and enforced. I hope that in the end, we will at least respect each other regardless of sex/gender/religion/orientation etc..
margokhal margokhal 8 years
Is today Gender Issues day? [I'm asking a serious question, not making a joke or being sarcastic, because it seems like after the Miss USA gay marriage comments, this is a stoke for the fire.] I will say this: Gender is not a legal issue. It has nothing to do with government. Gender is CULTURALLY defined. Sex, on the other hand, IS NOT. You are, biologically, whatever your sex chromosomes are. If you have no Y's - you're female. If you have at least ONE Y - you are male. It doesn't matter about what your primary or secondary sex characteristics look like. There are phenotypic hermaphrodites [those who have both male and female sex characteristics], but they are BIOLOGICALLY either male or female. And that never changes, unfortunately - you can do hormone replacements and physical alterations to match the gender you feel you are, as defined by the culture you're in, but it doesn't change your biological sex. The question is "what does it MEAN to be male or female?" And, just like religion, I wouldn't want the government involved in mandating that AT ALL. What is culturally acceptable/defined as "masculine" or "feminine" behavior or "male" or "female", gender-wise changes as times change, so this would be a moot point. What gender identity means could change years from now. What should be advocated is for states recognizing what other states consider marriage. If a same-sex [biologically] couple is recognized in one state [like Maine], they should be recognized as a married couple wherever they go. The other states don't HAVE to agree with it, or even allow same-sex marriages in their states - but they SHOULD be made to recognize that other states DO have same-sex marriages, and that those people must be considered so. Maybe, in the interest of lessening the possibility of tax fraud [which already is pretty massive], the federal government should consider everyone's taxes individually, regardless of whether they're married or not. Seems fair to me, and they'd be staying out of personal choices and lives. *shrug*
Chouette4u Chouette4u 8 years
This is why gay marriage and sex changes should be addressed by the federal government. It's too confusing and unfair to everyone if individual states have different laws.
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