"Same Sex" Marriage? What Intersex Does to the Gay Marriage Debate

Classification: News

Thanks to all the hostility to gay marriage, it’s looking like judges in the U.S. are about to start on a learning curve now familiar to the International Olympic Committee. That’s because, to categorize people strictly into men and women—as both gay marriage prohibitions and sex-segregated sports require—you have to figure out for sure what makes a man and what makes a woman. And that ain’t simple.

In fact, the IOC has given up on what was once called “gender verification.” They’ve given up because they figured out what the U.S. courts apparently soon will: There isn’t any rational way to decide, in many cases, whether a person should count as a male or a female.

There are at least three dozen well-documented variations in humans that result in something called “intersex,” or non-standard male and female anatomy. Though the mythical hermaphrodite—fully male and fully female—is a physiological impossibility, some people with intersex conditions are indeed born with both ovarian and testicular tissue. Some are born with both an apparent penis and an apparent vagina. Some are born looking really female but with XY chromosomes, and some are born looking really male but with XX chromosomes. Some are all male, except for a small or even non-existent penis, and some all female except for a big clitoris.

But this is terribly rare, right? Wrong. How common you think intersex is depends on what you think counts as standard male and standard female. (For example, you have to decide how small a penis must be before it counts as non-standard, and that isn’t a scientific decision—it’s a social one.) But conservatively speaking, one in 2,000 children is born with notably “ambiguous” sex. Many more than that are revealed later to have a non-standard version of sex. To consider just one possible example, Klinefelter’s Syndrome (where a child is born with a Y chromosome and multiple X chromosomes) shows up once in every 500 newborn boys, and in over 3 percent of men seeking infertility treatment. A peer-reviewed article published by the American Journal of Human Biology in 2000 estimated that one in 100 people are born with non-standard sex anatomy.

The International Olympic Committee figured out the high frequency of intersex the hard way. Before the 1936 games, athletes were allowed to sort themselves out. But then Hermann Ratjen cheated by trying to pass himself off as a woman and, though Ratjen lost, he set Olympic officials off on a quest for the ultimate divider of males and females. First they tried genital exams, but that didn’t work so well. They found that a lot of athletes had confusing parts. (Intersex.) Then in 1968 the IOC turned to buccal smears for would-be competitors in female sports. The idea was to rout out anyone with a Y chromosome. That didn’t work well either; a number of women athletes had Y chromosomes because they were born with androgen insensitivity syndrome. (Intersex again.)

Now wait, you might say: why not insist those people with androgen insensitivity syndrome (AIS) were really men, and call it quits at the chromosomes? Because that wouldn’t make any sense! Women with complete AIS are women—they look like women, feel like women, and live as women. From birth on, they are identified by others and themselves as girls and women. And, in matters of sports, they are theoretically are at a natural disadvantage compared to women without Y chromosomes. That’s because though women with AIS are born with testes, and though those testes make testosterone, their bodies can’t “hear” the testosterone; that’s why they develop to look classically female (except they lack certain body hair). Meanwhile, XX women typically produce androgens (though less, relatively speaking, than the average man) and do have the receptors to hear them—so they have it easier, biologically speaking, than an AIS woman athlete.

For a few years, the IOC in fact did try to insist that AIS women were men; once they figured out which women had AIS, they tried to get them to give back their medals. But the medical establishment, to its credit, rallied around these women and explained the facts of biology—especially intersex—to the IOC. And so the IOC finally gave up gender verification.

Whether or not the medical establishment rallies to explain intersex to the U.S. courts remains to be seen. If history is any guide, as gay marriage prohibitions make their way through the courts, a scientific expert here and a medical expert there will offer up one little gene or one type of anatomical tissue that might be used as a male-female sorting mechanism. But such a sorting system simply won’t accord with what people see on the outside and feel on the inside. The fact is, every anatomical bit you think of as female (breasts, XX-chromosomes, even ovarian tissue) can be found on someone who has looked and felt like a male since birth. The opposite is also true. Think about it: if sex categories really were naturally strict, we wouldn’t see so many cosmetic surgeons offering men breast reductions and offering women facial electrolysis.

There is a historical precedent for the collision of intersex and gay marriage. As I documented in Hermaphrodites and the Medical Invention of Sex (Harvard University Press, 1998), in the late-nineteenth century doctors came across many cases of “homosexual marriage” cased by “mistaken sex” (intersex). A few of them quite actively tried to break up those marriages, marriages they considered “unnatural.” But in many cases, so far as I can tell from the record, love was stronger than medicine, just as nature is stronger than science.

Will intersex have to show up in the families of Congress before they wake up and smell the coffee? Oh wait; statistically speaking, it already has.

[For more, see also Stephen Jacquier’s UPI commentary, Gender & the Marriage Debate]