“Measure 36 sends a simple, positive message to children that marriage should be between a man and a woman. It just makes sense.”
So reads an argument found
in the Oregon voters’ pamphlet
in favor of Ballot Measure 36, which would amend the Oregon Constitution to define marriage as valid
and legal only between one woman and one man. Besides the obvious issue of discrimination against gay and lesbian couples, another less prominent matter is presented in two specific words of this initiative: “man” and “woman.” These terms and this ballot measure are anything but simple.
Doctors estimate that one in
2,000 babies is born with ambiguous sexual organs, or has sex chromosomes different from his or her phenotypic reproductive organs. This percentage of the public is biologically neither male nor female. Many are assigned a sex as children. Medical procedures may be undergone in an attempt at classification. Still, most simply accept their bodies as they are and live normal lives as either the gender that their parents appoint to them, or that of their own choosing. The question then rises, what or who defines a person’s legal sex when the genetics are ambiguous?
Citizens who have undergone gender reassignment surgery
also walk the precarious line of
sexual category. Born clearly as
either male or female, these are
people who feel that their personal gender is different from their biological sex, and therefore choose to “become” another sex through
a combination of lifestyle decisions, and/or hormones and surgical
operations. Some experts estimate that 1.2 million Americans
believe that they were born into
the wrong gender. Again, after a process of sex change is complete, the question remains whether this person should be assigned, legally or otherwise, to the sex they were born with, or to that which they have personally chosen and are currently living as.
Faced with enough problems in our sharply gendered culture, the approval of Measure 36 would provide another arbitrary hurdle for these members of our society. If marriage is only recognized between a man and a woman, an intersexed or transsexual person could easily be refused inclusion within this legal status.
Imagine this situation: A baby
is born with partial male and female organs, raised as a female, and
eventually marries a man. Unfortunately, after 15 years of marriage, her place of employment is cutting health insurance to employees. Upon learning about this woman’s unique situation, the company refuses to provide insurance to her husband or children. If the Oregon Constitution is amended, this employer would be in the right: A marriage of 15 years between two people who consider themselves a man and woman would not be a marriage at all.
Likewise, a husband or wife who has undergone a sex change at some point in life will be denied benefits afforded to married couples, such as paid sick leave to care for a partner, or immunity from testifying against his or her spouse. For any benefit of marriage that could cost another member of society monetary or other problems, it will be the intersexed or transsexual person that does not receive fair justice.
These situations are more than just possibilities. In 1999, Christie Lee Littleton brought a wrongful death suit against her late husband’s physician and lost when her marriage was ruled invalid. Littleton was living as a woman but had been born genetically male. In Texas, she could, therefore, not have legally wed another male, and her seven-year marriage was ruled invalid by the court.
Similar situations must not be
allowed to occur here in Oregon.
It is discriminatory enough to deny rights of partnership to gay couples, but at least conversation and discussion exists on behalf of these
couples. The issue of intersexuality in conjunction with Measure 36
has been almost completely overlooked by both supporters and opponents, an unfortunate move as this issue is an important component of the debate.
If a constitutional amendment
allows government officials to decide a person’s gender for them, rights of privacy and liberty have been severely trampled upon. Moreover, employers and others could legally argue the need to demand genetic testing if they suspect intersexuality, another clear violation of citizens’ privacy.
No government should be allowed to decide an individual’s sex or gender. If a people are born with ambiguous genitalia, or even if they aren’t, it is within their constitutional rights to determine their affiliation with males, females, both or maybe even neither.

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