Prop 8 upheld… but can it be enforced?

In today’s decision to uphold Proposition 8, the California Supreme Court justices were just doing their job. I can’t fault them, as they were working within the boundaries of the legislation they have been handed over the years. Remember, the California Supreme Court started this in the first place by ruling that same sex marriage was legal over a year ago.

But even though the decision upholds legalized discrimination, it’s not quite clear if it can be enforced. Why?
No single legal definition – or even medical definition - exists defining what is a “man” and what is a “woman.” And it is for good reason: no one definition can apply in all possible circumstances.

While sex and gender are the most common ways to refer to male-ness and female-ness, and there are other ways as well. But when asked to define a man and a woman, most people first respond with the obvious physical traits – the biological basis of what is man and what is woman. In the following discussion, I’ll investigate what biological traits can be used to discriminate between men and women, and how they might have difficulties being applied in a discrete fashion that can be to legally determine if an individual is a man or a woman.

What it comes down to: SEX.

Even the youngest child knows that men tend to have certain physical characteristics, while women have others. Daddy is taller, mommy is shorter; daddy is hairy, mommy not as much; daddy has a pee-pee, and mommy doesn’t. Biologists and anthropologists refer to this as sexual dimorphism - a fancy term for physical differences between two individuals that can potentially produce offspring (e.g., a man and a woman). These differences can include characteristics anyone can see like height, and genitals, and those things you can’t see, like internal reproductive organs, levels of hormones, genes, chromosomes, and the structure or quantity of protein that gets produced from your DNA.

But sometimes mommy is taller (or more hairy) than daddy. Sometimes a person with female reproductive organs has levels of testosterone which exceed those normally found in a man. And sometimes men have not one, but two- or even three X chromosomes. In the real world, it becomes quite clear that clear-cut sexual dimorphism is a Platonic ideal, not a reality. Here are some of the ways that legal attempts to define sex might be made based on an individual’s physiology - and how they’ll fail.

What’s Hangin'?: secondary sexual characteristics

the presence of genitals and other sexual organs

It might make perfect sense to most: what you’ve got in your pants defines your sex. The doctor checks out what bits you have when you’re born, fills out your birth certificate, and that defines what your sex is for life.

But, there’s an obvious problem: people born with ambiguous genitalia - perhaps neither form of genitalia are visible at birth, perhaps both male and female reproductive equipment makes an appearance either at birth or later on in life. 1.7% of infants are born with no clear indication of their reproductive sex, according to Melanie Blackless and her colleagues at Brown University’s Department of Molecular and Cell Biology and Biochemistry. That’s almost 2 of every 100 children. And while some of these conditions might resolve over time or with treatment, many parents in a rush to have a normal child elect for surgical treatment, before their behavior defines what they ‘are.’ And oftentimes have the wrong gender inscribed on their birth certificate, or they may even they may be ‘reassigned’ to the wrong gender, leading to a life fraught with psychological turmoil.

FAIL: 6,081,194 Americans

Genetic material: presence of X/Y Chromosomes

Junior High biology teaches us that the difference between men and women comes from our DNA: defining men as XY and women as XX would promise a convenient way to assign sex. But it turns out that our reproductive machinery isn’t always that great at doing what it’s supposed to. A study in 1990 indicates that 1 out of every 426 children is born with an abnormal number of sex chromosomes. Women have been born with anywhere with the genotype X0 (only one X chromosome), XX, XXX, and XXXX, with varying impacts on their development, and about 1 in 500 males are believed to have two, three, or even more X chromosomes in addition to their Y chromosome. Symptoms in men with XXY, XXXY or even XXYY genotypes may be mild enough to be unnoticed, so this number may be underreported. Men born with XYY are more widely known in popular culture due to the belief that it leads to criminal behavior (nope, not proven) , but most appear normal - so much so, in fact, that it’s estimated that 97% of XYY males in the UK are unaware that they have an extra Y chromosome .[1][2]

FAIL: 711,500 Americans

Girls who are boys and Boys who are Girls: it’s in their genes.

It’s not just men. Some “women” may in fact have XY or XXY genotypes, but appear to be female in every way. In some cases, this is due to a mutation or loss of the SRY gene on the Y chromosome, which produces a “pro-male” protein. In fact, at the 1996 Olympics in Atlanta, female athletes were forced to undergo genetic testing to determine if they possessed the SRY gene, although due to controversy, they were not excluded from competition.
In another twist, there are two genes on the X chromosome (DAX1 and WNT4) which both produce “pro-female” proteins, and individuals with duplications of the region of the X-chromosome containing either gene will appear ‘female” even if they have an XY genotype. Additionally, some “men” are genetically women with XX genotypes, but somehow a copy of the SRY gene managed to make its way on to one or more of their X-chromosomes. And while “XX+SRY” “males” are not able to reproduce, “XY/XXY-SRY” and XY individuals with the X-chromosome duplications discussed above may be able to reproduce, transmitting their modified X-chromosome to any offspring successfully carried to term.
The question that must be asked: if these fe-males are able to successfully reproduce, passing their fe-male ness to 50% of their potential offspring (a higher percentage than in traditional maternal genetics due to the inviability of YY offspring), is it God’s will that two individuals who are genetically male should be allowed to marry and reproduce?

FAIL: under 200,000 Americans, precise estimates not available

Sorry, baby: no baby, no KitchenAid Mixer*.

One concept commonly used by biologists to define a ’species’ is based on reproductive compatibility: a species is a group of organisms that have the ability to mate and successfully produce offspring which can continue to reproduce amongst themselves in future generations. The greatest difference between heterosexual marriage and same-sex marriage lies in the basis that only heterosexual couples are capable of successfully reproducing. It might follow, then, that a good way to define “men” and “women” for the purpose of marriage would be to adapt the “biological species concept” to read as follows:
A man and a woman can be defined as a pair of humans that have the ability to mate and successfully produce offspring which can continue to reproduce amongst themselves in future generations. The man/male is the contributor of genetic material in the form of spermatozoa, and the woman/female contributes the oocyte and carries the embryo/fetus from conception, for the duration of the gestational period until birth.
But it turns out that there’s a big ol’ flaw in that logic: were the law to be applied equally and fairly, it would require that only couples which could actually produce viable offspring would be able to be defined as a ‘man’ and a ‘woman…’ meaning that those women who are unable to bear children and men with no swimmers could not be defined as a suitable mates to anyone, and thusly could never be married. And while surrogacy would go out the window, eugenics would be allowed to sneak in: equitable enforcement would require that couples undergo genetic testing before marriage to ensure that successful reproduction would occur. For if its argued that marriage is for the sole purpose of procreation and ensuring continuity of the species, adherents of the Bible know that God said “Go forth and multiply,” not “If you’ve got bits that fit and it might work, give it a go.”
So barring marriage explicitly becoming a governmental approbation of recreational heterosexual sex without the aim of reproduction, let’s revise that definition:
The man/male is the contributor of genetic material in the form of spermatozoa, and the woman/female contributes genetic material in the oocyte.
This definition would allow those who need the assistance of fertility clinics or surrogate mothers to try to have offspring… but oops, we have another problem. It won’t be long before science has the ability to create oocytes (eggs) from cellular DNA to help women who do not have viable eggs… and chances are that it would be fully possible to create eggs using genetic material from those with the XY genotype as well. That means that if a doctor selectively transfers the X chromosome of a male into a donor oocyte, two people with XY chromosomes will be able to successfully produce offspring, fulfilling the requirements of the man/woman relationship. And there may still be problems when it comes to the possibility that unions, even heterosexual unions which wouldn’t produce viable offspring could still be prohibited.

FAIL: at least 10-15% of married couples.

A little bit of this, a little bit of that: man and woman at the same time.

And what of those who are both male and female at the same time? Ranging from many who have received organ transplants from a donor of the opposite sex to those who exhibit the rare, but not unheard of condition known of as embryonic chimerism, many people have parts of their bodies that contain tissue from different individuals, possibly possessing different sex chromosomes than those inhabiting the rest of their body.
Chimerism is a condition that arises when within the first four days following fertilization, the embryos of fraternal twins fuse in utero, producing one individual containing the genetic material of two separate embryos. Any later than four days, embryonic cells begin to segregate into distinct tissues and fusion would most likely result in siamese twins. Depending on the timing and physical point of fusion of the two embryos, the distribution of genetic material from the contributing embryos will vary.
In 2005, Discovery Health aired a fascinating show called “I Am My Own Twin”about the phenomena of embryonic chimerism – and the devastating effect it can have on the lives of those affected (follow the link or roll on down to the bottom of this article to view the video on youtube).
Most known chimeras will have pronounced physical symptoms, but in the absence of symptoms, most individuals will likely never know of the presence of genetic abnormalities, making it impossible to determine the exact frequency of chimerism in humans. However, given the increasing reliance on DNA testing in criminal investigation, determining the true incidence of chimerism would indeed be a valuable bit of knowledge which has yet to be obtained. And with the advent of more widespread DNA testing, more chimeras are undoubtedly likely to be discovered. Regardless, due to the lack of noticeable symptoms in both women profiled in “I Am My Own Twin”, it is fairly clear that many chimeras may go undiscovered, and it is quite possible that chimerism from two embryos of the same or opposite sexes is more prevalent than currently recognized.
But what does this mean for finding a legal definition of men and women? If the two zygotes who fuse are of opposite genetic sex, it is possible for a single individual to be “male” in some parts, while “female” in others. Once again, it simply adds another level of complexity to the issue.

FAIL: We have no idea.

So who cares?

So what does this mean for the ability to restrict marriage to a legal contract between a man and a woman? If we seek a biological basis for a unilateral, legal definition of what is “man” and what is “woman,” particularly in the quest to restrict who has access to specific constitutional rights, any of the potential outcomes, if equally applied to all persons, will exclude more than simply homosexuals from the right to marry as well. It will exclude people we know: our friends who are having difficulty conceiving, people who, due to some biological twist of fate, were born different.
Attempts to define “man” and “woman” in the pursuit of defining marriage will undoubtedly mean the rights of millions of individuals, including those who are not homosexual will be put at risk as well. Any attempts to make exceptions or accommodations for the secondary victims of legislation dictating who is allowed to marry whom would undoubtedly require the intervention of a governmental entity tasked with determining who is male, who is female, and who need not apply - ushering the spectre of government-sponsored eugenics back in from the shadows.
Are these individuals who don’t clearly fit into the categories of male or female any less human than those who do? At what level of our biochemical makeup are we considered to be less than human and deemed not worthy of the protections granted to all by our constitution? Because that’s the real issue at stake: if all humans are said to have equal rights under the constitution, defining marriage as being only between those who can neatly be classified as a man or a woman effectively excludes those falling outside the boundaries of that category from being human.

So how can we come up with a solution?

If the institution of marriage is truly aimed at procreation, perhaps, then, the fairest way to define marriage wouldn’t be proactively, but retroactively. Here’s how a visit to the county clerk’s office would go:
You want to spend the rest of your life with this person? Ok, then, here’s the forms you need to complete to instate your civil union. Wait – you wanted to get married? Sorry, marriage is an institution only available to those who make babies. Go have fun and come back in nine months with a birth certificate or proof of adoption… that’s your marriage license.
In the interest of fairness, I’d love to see this on the ballot come next fall. And when the day comes that the first male couple walks into City Hall with the birth certificate for their lovely daughter, carrying the DNA from both of her proud papas, we can expect to hear no protest from the former supporters of Proposition 8.

The only other suitable route to enforcement would be to pass comprehensive legislation that defines what is man and what is woman. As shown above, since what is on one’s birth certificate is not necessarily what is in one’s reproductive organs or one’s DNA (which may not even match each other), anyone should be able to apply for a marriage license. Should anyone choose to contest that marriage application, they would be given the chance to speak then or forever hold their peace – and would be required to prove, non-invasively, of course, that the applicant is not what they say they are. At their own cost. And even if someone happened to receive a blood transfusion from an individual of the opposite gender the day before any genetic testing occurred, how could you be certain that any foreign DNA doesn’t simply indicate that they’re chimeric? And with all of the potential biological loopholes (or the psychological and cultural loopholes which I’ve left for another time, they must allow anyone to marry unless the challenger can prove in every possible way – and at their own expense - that they are not eligible to marry.

So until either the law becomes equitable or the hearts of men change, I encourage those currently unable to marry due to the chance meeting of sperm and egg and those who simply believe that the arbitrary designation of maleness or femaleness scribbled on a birth certificate is insufficient to form the basis of government-sanctioned discrimination to call on our government to define what is male and what is female. And until that legislation is passed, there are no legal definitions that can be applied. Chances are, once the lawmakers sit down and try to figure it out, they’ll either never be able to come to agreement, or they’ll go on strike until the voters themselves overturn Proposition 8.

* Seriously, if there is one true benefit to getting married, it’s the wedding gifts. And no one should be able to take away anyone’s right to get the ultimate wedding gift - a KitchenAid stand mixer.

Some references:
“Klinefelter Syndrome” (HTML). Health Information. National Institute of Health and Human Development. 2007-02-19. Retrieved on 2007-03-24. and “Klinefelter syndrome” (HTML). Genetics Home Reference. National Library of Medicine. 2006. Retrieved on 2007-03-24. both provide statistical estimates.
 Blackless, Melanie, Anthony Charuvastra, Amanda Derryck, Anne Fausto-Sterling, Karl Lauzanne, and Ellen Lee. 2000. How sexually dimorphic are we? Review and synthesis. American Journal of Human Biology 12:151-166.
Sex chromosome abnormalities found among 34,910 newborn children: results from a 13-year incidence study in Arhus, Denmark. Birth Defects Orig Artic Ser. 1990; 26(4):209-23. 
Graham, Gail E.; Allanson, Judith E.; Gerritsen, Jennifer A. (2007). “Sex chromosome abnormalities”. in Rimoin, David L.; Connor, J. Michael.; Pyeritz, Reed E.; Korf, Bruce R. (eds.). Emery and Rimoin’s Principles and Practice of Medical Genetics (5th ed.). Philadelphia: Churchill Livingstone Elsevier. pp. 1038–1057. ISBN 0-443-06870-4. 
Jacobs, Patricia (March 3–5, 2006). “The genetics of XXY, Trisomy X and XYY syndromes: an overview”. National Conference on Trisomy X and XYY, UC Davis M.I.N.D. Institute, DVD 02, Sacramento: KS&A.

If you’d like references for any other facts that I’ve cited, post a comment below and I’ll try to dig up the reference from my web history… but please note all of the facts directly stated were obtained from articles published in scientific journals, the National Institutes of Health and associated Government agencies, or other reputable sources, with the exception of the percentage of married couples seeking assistance from fertility clinics: those numbers represent the range cited in the top 10 google results for the query “Infertility affects percent of couples”