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Friday, June 6, 2014

Banish the Courts from Our Shorts

Posted By on Fri, Jun 6, 2014 at 4:13 PM

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Republicans in my home state are once again embarrassing Hoosiers with their homophobia, but there may be a novel way to close an obnoxious venue for pandering, and to gain legal marriage rights for all. The Republicans are debating reinserting that "marriage is between a man and a woman" as a plank in the Indiana GOP platform.

Translation: They want to scapegoat gays and flamboyantly pander to Christian fundamentalists and homophobic voters by reinserting a defunct plank. They formerly and prudently scrapped this plank, which reflects what is already law in Indiana! Some GOP strategists, however, want to shout it from the rooftops to make sure everyone knows that when Republicans are in power they will keep those dangerous homosexuals where they belong, far, far away from the marriage altar. No risk of gays gaining equal rights on our watch, FOR SURE FOLKS!

The reinsertion of this anti-gay-equality-plank might be viewed by some as a foolhardy choice as it means these clever GOP "strategists" ignore the many polls which show support for gay marriage rising rapidly; the young, it seems, are not nearly as homophobic as the people dropping off the voter rolls at the other end of the age spectrum. A single lawsuit based on scientific facts, however, could save these foolish Republicans from themselves, by abruptly ending the gay marriage debate in Indiana (and elsewhere.) That lawsuit could be based on the fact that an exact point of scientific demarcation between the male and female sexes is a fiction. I repeat; the divide between male and female is fuzzy, not abrupt.

Sex, male and female, is not as clearly bifurcated as we have been led to believe; our language and culture, however, do not make room for anything but an either/or reality. Sex and gender might be thought of as a continuum with a substantial gray area in the middle. The existence of this gray area means that any law based on sorting humans into only two sexes is scientifically spurious (not unlike race-sorting.) Brown University biologist and historian, Dr. Anne Fausto-Sterling, stirred up a storm with her 1992 article in which she suggested there might be five sexes instead of two.

Medically speaking a 'masculine' or 'feminine' appearance, visible genitalia, hormone levels, the ability to procreate, and chromosomes all fall short as tools to decisively determine that a human is male or female, or a mix. And if there is no scientific means to firmly assign sex to humans, then the courts should be banished from our shorts; it's that simple. It may be news to most, but the science is clear, and this truth should be the basis for abruptly ending the gay marriage debate.

"Boy or girl?" is the first question asked when a baby is born, but an estimated 1.7 percent of people are born with bodies that differ chromosomally, anatomically, or hormonally from the dimorphic, male/female ideal. That is 5.4 million Americans and 122 million people worldwide. Our culture is so fixated on the faulty notion of only two options that sexually ambiguous infants tend to be arbitrarily assigned a sex, and sometimes, tragically, that guess is surgically sealed before the individual has any opportunity for input.

So what about genetics and the sex chromosomes?

Most females have two X chromosomes, while most males have an X and a Y chromosome, the Y supposedly driving male development. Sometimes, however, a person will have only an X, or will have one X and a damaged, partial X or Y, or they may have two Xs and a Y, or an X and two Ys. At least 30 different chromosomes, not just the two "sex" chromosomes, have some influence on sex. Some normal looking males have even been found to have two X chromosomes and no Y. Genetic testing for Olympic athletes was tried but abandoned due to unreliability. Then there is the influence of androgens during gestation.

All embryos begin as females. A precise ballet of specialized hormone releases during gestation turn roughly half into males. It takes three precise androgen releases to form a male, and these do not always launch. Sometimes the hormones launch, but the receptors are missing. Then there are the environmental assaults of endocrine-disrupting chemicals in water, food, and consumer products. Our society is awash in synthetic and natural hormones (i.e. meat, dairy, plastics, pesticides, cosmetics, pharmaceuticals), often unwittingly ingested by pregnant women. The burden of environmental chemicals that can affect sex development appears to be rising rapidly, so we might anticipate a growing population of sexually ambiguous individuals. A very slight alteration of hormones during gestation can result in so called "feminized males" or "masculinized females," who may have a mix of male and female anatomy, sometimes hidden internally.

Hormone levels and the ability to procreate are also problematic as proofs of sex. Hormone levels may be manipulated by drugs, and irregular for many reasons such as age or illness, so they fail as a clear scientific basis for determining sex. And the ability to procreate obviously leaves out a huge constituency, including the pre and post fertile, and the intentionally and accidentally infertile.

It is a calamitous disservice to those in the ambiguous region of the sex continuum to deny their personal reality by forcing them to be legally assigned as either male or female by some external authority. The existence of people in a mixed physical state should render forced labeling as either male or female a violation of constitutionally protected privacy rights. I do not believe that forced sex assignment would stand up in court if the proceedings were rational and just. Every time some politician whips out the "same-sex" marriage rhetoric I think of the invisible people in the middle. Should hermaphrodites and transgendered people be banned from marriage, or should they be able to decide on their own who they are and who they love? The situation of gay people is no different. How can we give the state such powers? We love who we love and a government decree robbing some of rights others enjoy only diminishes that society.

It is time to nix the hateful pandering of the GOP by nullifying the gay-marriage debate using science. (They will of course eternally deny the science, butÉ) It is time to chuck the inflexible definitions of male and female, assignments manifestly inadequate to the reality of millions. The protections of privacy in the U.S. Constitution should preclude the courts from peeking in our shorts and attempting to prove that people who claim to be male or female, or who refuse either assignment, are something other than what they believe themselves to be. A lawsuit based on medical privacy rights, highlighting the flaws in the practice of sex assignment, would render unenforceable all laws stating that marriage can only be between a man and a woman.

The current GOP anti-gay-marriage legal/political frenzy strikes me as the death throes of a last bastion of legalized bigotry. The definitions of sex, given our current medical knowledge, must be amended to accommodate everyone. It is time for a lawsuit that will end the use of this particularly foul and hurtful political football. Any eligible person should be allowed to marry any other eligible person. Nature is diverse and we are a civilized people. The civilized option here is to allow people equality and the freedom to be who and what they are, without political scapegoating, discrimination, or arbitrary assignment.

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