Comments on: Proposition 8 Is Wrong In Ways You Might Not Expect

By: Carly

Carly — Fri, 07 Nov 2008 21:12:22 +0000

Although many of us fully acknowledge the fluidity of gender and all the nuances that go with it, state law only sees sex, that is male or female. Because Prop 8 passed and we are back where we have been since 2000 in California, where same-sex marriage is specifically illegal, only a documented male and a documented female can be married.

First something should be cleared up. Someone born male could identify as female but not go through gender reassignment surgery. This would mean that even though she identifies as female, all state documents would say she is male and she could only marry a state documented woman.

Or she could get the gender reassignment surgery, still not change her sex legally (meaning her driver’s license and birth certificate still say she is male) and still marry a woman. She can change her name to a female name but leave her gender as male if she so chooses.

Or she could have the gender reassignment surgery and jump though the many hoops to get her gender changed on her driver’s license and birth certificate (http://transgenderlawcenter.org/pdf/TLC%20ID%20Guide.pdf ). After all this is complete she can marry a state documented man.

The only way I can see this being an argument about same-sex marriage is for the very small percentage of people who were married before one of them changed their gender. And I’m really not sure what happens in that case.

Keep in mind, I am not a lawyer nor have I checked these facts with a lawyer. But I do know someone who legally changed their sex and then then married someone of the opposite sex, meaning that both people were born the same sex.

Once you get into the whole chromosome thing it might matter for the individuals, but it doesn’t matter to the state. They strictly go by what it says on your birth certificate.

By: taj

taj — Fri, 07 Nov 2008 20:54:30 +0000

A friend in the Bay Area tells me her ex-girlfriend got married to a woman during the ban period under Prop 22 this way:

“…if you are born female but identify as male, and have changed your sex on your CA drivers license to male you can marry a woman … I believe you have to live as the other sex for a year.”

I wonder where these rules are set, if they’re guidelines, statute, case law, or what? Anyone know the story?

By: taj

taj — Fri, 07 Nov 2008 19:38:54 +0000

A reasoned and thought-provoking response, Ric … I would expect nothing less! Changing the state’s role solely to civil unions would certainly alleviate the separation of “equality” between various groups. And it’s perhaps an easier argument to make … “what do you mean you don’t want a civil union? If it’s good enough for ‘them,’ isn’t it good enough for you?”

BTW, I hear tell that the Mormon church (LDS) was involved pretty heavily in lobbying efforts on behalf of Prop 8, which is a direct violation of their 501(c)(3) status. If you think this is wrong, here’s a peition you could sign:

http://www.thepetitionsite.com/petition/166429743

By: Ric Moore

Ric Moore — Fri, 07 Nov 2008 01:13:17 +0000

The issues can be simple or complex, depending. Most fundamental is the question whether Constitutionally any group of persons’ rights under the law can be eliminated once granted. The equal protections clause would appear to apply. Then, the equal protections clause is a straight-forward argument against the prohibition to begin with. But, the issue of marriage actually arises extra-legally. Marriage arises in a field of law for “consortium” or contractual relations. The reason for “civil unions” is to bypass the “marriage” question entirely and only address the contracts question, with the matter of civil rights established under predefined contractual obligations. One can thus argue that “marriage” as such is a matter of religion, and thus outside the province of law per se – subject only to decisions of one’s church. That way, one could marry or not according to the dictates of one’s church, and it is not a state matter – consistent with the U.S. Constitution. Then, all relations under “consortium” are independent of the question of “marriage”. This avoids the whole matter of the state telling religions what they can or cannot “believe”. But, then, every religion can also define “marriage” within the religion the way it wants to. Every religion is also free to recognize or ignore the legitimacy of marriages in other religions however it chooses – which was the historical reality anyway. But, marriage would also be irrelevant to the question of rights under civil unions.

Getting into the matter of defining “man” and “woman” is not only a conflicted matter of biology, but of sociology. Before we even address those questions, however, we might want to consider that the proper distinction is “male” and “female”, not “man” and “woman”, since “man” is actually ambiguous – representing both male and female. The etymologically accurate term to distinguish a male “man” is “werman” – a term long ago fallen into disuse, but the proper one. There are also the terms “husband” and “wife” which are social roles, actually independent of one’s sex in a number of cultures, though conventionally aligned with particular sex role members. Thus, a biological woman might assume the sociological role of husband in a particular culture by performing the traditional responsibilities of the role – including dress and behavior.

In any event, the simplest resolution, it seems to me, is to relegate “marriage” solely to the decision of individual religions, and establish the state’s interest solely in the matter of civil unions and the associated civil rights, for which there are simple Constitutional and legal principles to apply: any two competent adults may mutually choose to establish a civil union under conjoint terms, modifiable in accordance with common rules of the state.

By: Ned

Ned — Thu, 06 Nov 2008 21:10:24 +0000

I couldn’t agree more. There’s always an exception to every rule, and you’ve noted several. Personally, I think we must stop ourselves from getting too carried away with a false sense of progressiveness. True, we’ve made some accomplishments… but Prop. H8TE is a shining example of the provincial mindsets that persist. And the mascot image of gays in the media is not helping us break these barriers. I think gays need to defend our truly unique identities from mainstream clownism… Our mischaracterizations certainly contribute to homophobia, perhaps more than we realize. In some ways, we’ve created part of our own problem – or at least, we’ve unintentionally created additional obstacles for ourselves in our pursuit of equality… which we are a long way away from. Take to the streets, people! We’ve still got a LOT of work to do. Let’s not get complacent just because of the recent election.