Intersexuality and Universal Marriage Michael L. Rosin* I. INTRODUCTION ................................................................................... 52 II. A BRIEF SURVEY OF THE INTERSEXED IN WESTERN THOUGHT ........ 59 A. The Ancient World.................................................................... 59 B. The Physically Intersexed and Western Legal Theory ............ 60 C. The Intersexed and Western Legal Fact: A 1601 Case from France ............................................................................... 61 III. RECENT CASES DEFINING SEX IN THE CONTEXT OF MARRIAGE AS THE UNION OF ONE MAN AND ONE WOMAN ............. 63 A. The Essential Role of a Woman in Marriage: Corbett v. Corbett ....................................................................................... 64 B. The Introduction of the Psychological Factor: M.T. v. J.T. .............................................................................................. 66 C. Texas, Where Men Are Men, Women Are Women, and Only Chromosomes Matter: Littleton v. Prange..................... 68 D. What Gametes Do You Make? As a Matter of Fact, It’s a Matter of Law: In re Estate of Gardiner ............................... 71 E. Neither of the Above—The Law Confronts Physical Intersexuality: In the Marriage of C. & D............................... 74 IV. SEXUAL CONSUMMATION AND REPRODUCTION IN TRADITIONAL VIEWS OF MARRIAGE.................................................. 79 A. The First American Case Reviewing Evidence of Physical Incapacity.................................................................... 81 B. The First English-Speaking Case Reviewing Evidence of Physical Incapacity ............................................................... 82 C. Late Marriage............................................................................ 86 * Michael L. Rosin is a freelance writer and independent scholar. He received an A.B. from the University of Chicago, a M.Sc. (Econ.) from the London School of Economics, and a M.A. from the University of Pittsburgh. Please address all correspondence to [email protected]. The author would like to thank the staffs of the Seton Hall University Seminary Library, the New Jersey State Library, and the law libraries at Rutgers-Newark and the University of Pennsylvania; the Endocrine Society for making their publications available online; Professor Julie Greenberg for her work in the area of transgender legal issues and for her analogy between sex and race; Professor James Lennox for his tips on reading Aristotle; Professor Katharine Park for her help with Hippocrates; Professor Alice Dreger for her review of the author’s historical diagnoses; Sally Gross for help with Maimonides; Cheryl Chase for providing a reference; Deirdre Reilly for being the author’s constant muse; and Professors Hadley Arkes and Robert P. George for always making themselves available for discussion and encouraging the author’s intellectual endeavors. 51 52 LAW & SEXUALITY [Vol. 14 D. Reproductive Complementarity ............................................... 87 V. BINARY CLASSIFICATION IN LAW ....................................................... 90 A. White Versus Nonwhite: Racial Classification in the Context of Immigration ............................................................ 91 B. White Versus Nonwhite: Racial Classification in the Context of Marriage.................................................................. 93 C. Justice Ormrod on Sexual Binarism ........................................ 94 D. Dr. Ombredanne’s Sexual Balance Sheet................................. 97 E. The Right to Be a Member of One Sex or the Other ............ 100 VI. CAN THE RIGHT TO MARRY DEPEND ON SEXUAL DISAMBIGUATION SURGERY? ........................................................... 102 A. W v. W: Sexual Disambiguation Surgery Is Sufficient........ 102 B. The Integrity of the Body ....................................................... 104 VII. CONCLUSION .................................................................................... 106 VIII. APPENDIX—A BRIEF SURVEY OF PHYSICALLY INTERSEXED CONDITIONS...................................................................................... 113 A. Preliminaries ........................................................................... 113 B. Paths Along the Branches Leading to Typical Suites of Sexual Characteristics............................................................. 114 C. Paths Along Branches Less Often Taken Following Gonadal Differentiation .......................................................... 116 1. 17-Beta-Hydroxysteroid Dehydrogenase-3 Deficiency ...................................................................... 116 2. Androgen Insensitivity Syndrome................................. 118 3. 5-Alpha-Reductase 2 Deficiency .................................. 120 4. Persistent Müllerian Duct Syndrome ............................ 122 5. Congenital Adrenal Hyperplasia ................................... 123 6. Meyer-Rokitansky-Küster-Hauser Syndrome .............. 124 D. Atypical Chromosomal Combinations .................................. 125 1. Klinefelter Syndrome..................................................... 125 2. Turner Syndrome............................................................ 126 E. XX Males and XY Females ................................................... 127 1. Background .................................................................... 127 2. Translocation .................................................................. 128 3. Life Isn’t So Simple ....................................................... 128 F. Genetic Mosaicism and Chimerism....................................... 129 I. INTRODUCTION Imagine the public furor that would erupt if Jake, a young, wounded veteran of the Iraq conflict returned home after an arduous rehabilitation, 2005] INTERSEXUALITY AND UNIVERSAL MARRIAGE 53 intending to marry his high school sweetheart Ashley and was denied a marriage license because of his wounds: the loss of his penis and testicles thanks to a land mine. Talk shows would queue up to have the couple as guests. Politicians would offer their services to marry the couple in some other, more liberal state. Nonetheless, one of the most “traditional” views of marriage, that is strenuously invoked against same-sex marriage (so called), would be forced by its own arguments to refuse to sanction the marriage of our wounded veteran. Canon 1084 section 1 of the Roman Catholic Code of Canon Law emphatically states that “[a]ntecedent and perpetual impotence to have intercourse, whether on the part of the man or of the woman, which is either absolute or relative, of its very nature invalidates marriage.”1 On this view, Jake’s war wound would prevent him from marrying Ashley or anyone else in a Roman Catholic ceremony. Whether the Roman Catholic Church or any other religious denomination should perform such a marriage is a matter for that religious denomination to decide and is not a matter of public policy. Whether the various states of the union should sanction such a marriage is a matter of public policy. Fortunately, no state law denies a marriage license to a war veteran wounded in such a way or anyone else whose genitals and gonads have been grievously damaged or surgically removed to cure a diseased state. If one of the most traditional views on marriage used to argue against same-sex marriage constructs a boundary for heterosexual marriage that is out of line with popular sentiment and the law in all fifty states, then certainly their arguments that marriage is the union of one man and one woman should be subject to critical examination. As the Bush administration puts its weight behind the proposed Federal Marriage Amendment that states “[m]arriage in the United States shall consist only of the union of a man and a woman,” many states are rushing to enact similar amendments with even more speed.2 However, very few have noticed that any such amendment (or statute) immediately raises the questions of “Who is a woman?” and “Who is a man?” 1. 1983 CODE c. 1084, § 1. 2. Federal Marriage Amendment (The Musgrave Amendment): Hearing on H.J. Res. 56 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th Cong. 7 (2004) (statement of Rep. Marilyn Musgrave (R-CO)). 54 LAW & SEXUALITY [Vol. 14 The Supreme Court has held many times that the right to marry is a fundamental, protected liberty.3 Defenders of the traditional view of marriage argue that the right to marry is the right of a woman to marry a man and the right of a man to marry a woman. If that is the case and if marriage is a fundamental right available to every person (of sufficient age and mental competence to contract), then the questions “Who is a woman?” and “Who is a man?” are of fundamental importance. Failure to answer these questions so that the woman-man distinction is exclusive and exhaustive can result in a court deciding that a person is incapable of marrying anyone! An Australian court handed down just such a decision in 1979!4 After more than a millennium of trying to squeeze all of humanity into one of two categories labeled “FEMALE” and “MALE,” it is time for Western law to catch up to biology and medicine and realize that FEMALE and MALE are not fundamental metaphysical categories that neatly or even messily classify all human beings unambiguously. After two thousand years, biology and medicine finally recognize that “female” and “male” are adjectives for