Thursday, March 13, 2008

A Question of Gender

As bizarre as this story sounds, I suspect there is more to it. And if it is as I suspect, there is an important issue at stake here. One of simple humanity. Not every person is born male or female. About one in every thousand live births is gender indeterminate. That is a problem on many levels. Some children are born with indeterminate genitalia, genitalia that is somewhere closer to the middle of the male/female spectrum. Some are so indeterminate that a doctor has a very hard time determining which developmental path the child should have taken but did not for one reason or another. Others appear perfectly normal, so much so that the doctor has no reason to suspect otherwise. It can happen for a number of reasons: hormone issues with the mother, hormone issues with the baby, chromosomal abnormalities or mutations, and even "vanishing twin syndrome" or chimerism, which is when one twin spontaneously aborts, but the other twin absorbs the fetal tissue of the other aborted twin. Sometimes the child outwardly appears completely male or female at birth and is classified as such, only to discover in later years that instead of ovaries, she has testes or vice versa. This usually does not become apparent until puberty when presumptive girls start growing beards and getting deep voices or presumptive boys start growing breasts. Things get kind of complicated when that happens.

Until recently (and in many cases, still) the child with indeterminate genitalia was subjected to sex assignment surgery immediately. Usually the sex chosen for the child was female, regardless of the genetic gender of the child or whether the child has testicles or not. This is because it is usually easier to make functional female genitalia than it is to make functional male genitalia from the bits of tissue the doctor has to work with. More often than not, the child is never told that she used to be a he, or worse, an "it". And cover stories of childhood accidents or disease are given to explain away the need for hormones and infertility in order to keep that family's shameful secret that the child is an IT buried deep in the bowels of the closet. But many times these children instinctively know there is something different about them. Often they are tomboys, playing sports and playing with "boy" toys, dressing and acting in a masculine manner and relating to boys better than girls. The reason is of course that their brains are that of a boy, not a girl. Despite what many people tried to say in the 60's and 70's, a boy is not a girl with a penis, and a girl is not a boy without one. boys do not grow up to be boys because they are taught to be a boy, they grow up to act like boys because they are boys. It is inherent in the way their mind works. These children are known as "intersexed", living in a legal and social limbo, with no easy answers to life's most fundamental questions.

The law however does not like for there to be gray areas. The law in Texas and in most states is very rigid. If you are genetically a boy, you are forever in the eyes of the law a boy, regardless of what your genitalia or hormones may indicate. If you are genetically a girl, you are forever feminine, regardless of what surgeries or hormone treatments you may have undergone. As to those individuals who are genetically neither, the law has them in limbo. They are neither male OR female in the eyes of the law.

Those who undergo sex reassignment surgery, regardless of whether they were born "intersexed" or not, later in life may discover to their dismay that they may not marry someone of the opposite physical gender, but may not marry someone of the SAME physical gender either. The law also often choses to remain ignorant of the actual genetic or physiological gender unless someone complains, then things get really sticky. Those who underwent sex assignment surgery without their knowledge or consent as infants ALSO find themselves in the same legal boat of being either genderless, or of the "wrong" gender, even though they have birth certificates and documentation that indicate otherwise. People who have married, and adopted children, or opted for IVF with donor sperm or surrogate mothers, etc. often find themselves in a legal no man's land where they are suddenly not just divorced, but never married. Instead of being the father or mother of a child, they are instead now a legal non-entity in the lives of their former children.

This is patently unfair. These people, these poor confused individuals, have as much of a right to a spouse and children as you or I. But the law does not allow it. This is not about the right to gay marriage. That subject is an entirely different can of worms both morally and legally, and is really a subject for a different day. This is also not about allowing fetishists who wish to modify their bodies as a means to gain control over something, anything, in their lives or as an attempt to "fit in" by realigning their physical gender so that they are attracted to the "opposite" sex instead of to the "same" sex. Often they undergo sex reassignment surgery only to discover that they have "buyer's remorse" and are even less happy as the other gender than they were to begin with. But since current psychological science cannot separate those individuals from the ones that truly are "trapped" in the wrong body, we find we must include them, regardless if their reasons are pure or not. This is about the right of an individual with a physical handicap or deformity if you will, to live their lives as best they know how. In many cases dealing with the consequences of a poor choice made by others, out of ignorance instead of informed necessity, without their knowledge or consent


Anonymous Anonymous said...

I think in the example in the link it is fair to assume that the husband knew he used to be a she, and he withheld that information from his wife. I'm not sure that this is an example that I would use to advance an argument.

That aside, I do agree that this is probably an area that the law has not properly addressed.


March 14, 2008 1:00 PM  
Blogger Rorschach said...

Don, you may well be right. It's really hard to say given the information. But on the flip side, they were married for 7 years and she had had two kids, she obviously knew what the mechanics of heterosexual sex were from her first child that was apparently conceived prior to their relationship. The second child was conceived via IVF from a sperm donor. So obviously she knew he could not supply sperm for the second child. I also find it hard to believe that in 7 years, she never saw him naked. Nor did they ever engage in any kind of sexual relations. Also, it is rather hard to hide testosterone injections or patches, although relatively recently a cream has been introduced. You'd think she would have noticed the bottles of testosterone in the fridge, or the box of Androderm patches in the medicine cabinet.

Methinks she doth protest too much. She HAD to have known that he was not a normal male in some form or fashion. Now it is possible that his explanation to her was not accurate, but she had to know something was not quite right here.

March 14, 2008 1:24 PM  
Blogger Rorschach said...

Don, even disregarding the case above, one could argue that Texas' laws regarding gender are in violation of the Americans with Disabilities Act as well as a violation of the Equal Protection Clause of the 14th Amendment. Many people are born with this problem, and one could argue it is a disability, no different than any other birth defect. Therefore, the law is discriminatory against the intersexed.

Now some people will try to take it further by claiming that their desire to change genders regardless if their physiologic and genetic gender are already aligned or not, is a disability as well. And the criteria to separate the two will have to be defined by the courts probably. In all likelihood, they will be granted similar rights by default.

March 14, 2008 2:06 PM  

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