Norrie. Photo: Dallas Kilponen / Sydney Morning Herald
A binary classification is one in which there are two, and only two, states in which a given entity may exist. Sex has long been such an entity, the two states in which it may be manifested being male and female. Nature occasionally presents us with individuals who do not fit in well with the binary schema in the form of genetic anomalies and morphogenetic quirks resulting in indeterminate sexual appearance; the standard response has been hormonal treatment and/or corrective surgery to assign such individuals to one of the two members of the binary set.
Traditionally, marriage was restricted to partners of opposite sexes as determined by the sex on their birth certificates. The binary system was tested by people who underwent ‘gender reassignment’: someone born one sex who, through medical interventions, changed his or her body to conform to the image of that of the opposite sex. In various Western jurisdictions, these people have been given the thumbs-up to marry someone of the sex opposite to that to which they have been reassigned following the legal recognition of their new sex through the changing of the birth certificate. The binary classification schema prevailed.
Same-sex marriage in itself does not throw the binary classification into a tizzy as long as we’re still talking M and F. However, there has been a move away from sex towards gender in terms of how people define their identity. Putting it simply, sex is anatomical while gender is psychological. For most of us, the distinction between sex and gender is a moot point, but there have always been people who have felt a discord between the two such as feeling like a woman in a man’s body (or the other way around), or even believing oneself to be both (or neither). With the shift towards gender and the de-emphasising of biological sex, there has been a growing acceptance of the view that ‘male’ and ‘female’ are at opposite ends of a continuum, thereby introducing arbitrariness into the conventional ‘either/or’ classification. The binary system is starting to look a bit shaky at this stage.
The kiss of death for any binary system is the recognition of a third member of that set which is distinctive rather than being ‘somewhere in between’ the two conventional categories – in the context of this discussion, a ‘third sex’ or, as it is usually called, ‘third gender’. A ‘third group’ made up largely of biological males but also intersex and sexless people has long been acknowledged in some cultures. In India, this group (known as the hijra) were awarded legal ‘third gender’ status this year. They are neither male nor female nor indeed ‘intermediate’, but constitute a discrete gender in their own right. The Indian move was in part prompted by the observation that the hijra had been regarded as a distinct group prior to the imposition of British law during the colonial era. Nonetheless, the ruling has been a shot in the arm for ‘third gender’ advocates in numerous countries, and we are certain to see more of it much closer to home in the foreseeable future.
Australian passport applicants for the past 10 years have been able to tick an ‘X’ box to describe their gender, ‘X’ standing for ‘indeterminate/unspecified/intersex’. But the ‘X’ option was not good enough for ‘Norrie’, an Australian transsexual who did not complete the gender reassignment journey and was granted the right by the Australian High Court to be officially recognised as not having a specific gender. While some newspaper reports used the term ‘third gender’, others went for expressions such as ‘gender neutrality’ that connote the absence of gender.
The ‘third gender’ category has been emerging as a catch-all for anyone who does not fit neatly into the binary classification schema, but it is clearly far from homogeneous. It is hardly surprising, therefore, that some social scientists are talking about there being four, five or even more genders. We are entering an era of gender-identity pluralism which is likely to have some interesting ramifications for marriage law.
The Netherlands was the first country to enact same-sex marriage law in 2001. The legislation says that “marriage can be entered into by two people of different or the same sex”. However, the explanatory notes on the central government (‘Rijksoverheid’) website explicitly state that “In the Netherlands, two men or two women can marry” (both translated from Dutch). In other words, the thinking behind the legislation remains constrained by the binary gender classification. Likewise, the UK’s Marriage (Same Sex Couples) Amendment Act 2013, while stating that “Marriage of a same sex couple is lawful”, reveals the underlying binary mindset when it goes on to state that “Marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”, the word ‘opposite’ connoting the M-F dipole. But once a third gender is legally recognised, the reference to the traditional gender binary becomes problematic. And what do we do if a ‘genderless’ status becomes recognised? It would be discriminatory to insist on people having a gender as a prerequisite to a marriage licence.
The obvious thing to do is to omit any reference to specified gender status in the marriage statute. The New Zealand Marriage (Definition of Marriage) Amendment Act 2013 seems to have it pretty right when it says that the Act’s purpose is to “clarify that a marriage is between 2 people regardless of their sex, sexual orientation, or gender identity”, the last of these making allowance for the addition of new genders and indeed a ‘no gender’ identity. To labour the point, any two persons can then marry regardless of gender status. And as a concomitant of being married, they can have kids – whether both, only one, or neither of the married couple are genetically related to those children is, after all, immaterial. (This is not a creation of the new gender order: it has been so ever since the law recognised adopted children as having the same rights as natural children.) Problem solved?
At municipal law level, that could well be the end of the story. However, it is not quite as straightforward at the international law level. The Universal Declaration of Human Rights currently reads “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family”. This would have to become “Persons of full age, without any limitation due to race, nationality, religion, or gender status have the right to marry and found a family”. But we have now created an incongruity between this article and the article in the Declaration relating to the family where the family is defined as “the natural and fundamental group unit of society”. As I have argued in my earlier piece Disparate bedfellows: same-sex marriage and human rights, international declarations of human rights forge an organic connection between marriage and the founding of natural families, which only M-F couples are inherently capable of doing.
There are two ways out of this quandary. One is to delete the ‘and found a family’ rider and place the full stop after ‘marry’. This leaves the article relating to the family out on a limb by detaching it from the article pertaining to how most families come into existence. The other solution is to broaden the definition of ‘family’ by deleting the word ‘natural’, rendering it “the fundamental group unit of society”. We can now retain the words ‘and found a family’ in the article relating to marriage as any two people of any gender status can ‘found’ a family in the more expansive sense of the word ‘family’. Problem solved again, and we can pat ourselves on the back for being truly ‘inclusive’.
I do not see these changes to the Universal Declaration of Human Rights happening in my lifetime – Muslim countries won’t wear it for starters. It will pay to keep an eye on developments with regard to European human rights law, though.
In our quest for ‘inclusion’, what are we doing to the quintessence of marriage? For millennia, marriage has been a formal pair-bonding institution between men and women as a means of laying the foundations for the production and nurturing of the next generation, and international human rights charters recognise this. What we are doing to marriage as a socio-legal institution in Western countries is dissociating it from the natural propagative functions of sex in the context of the nuclear family. The official recognition of genders outside ‘male’ and ‘female’ is likely to be the next step towards completing the job that same-sex marriage began – the dismantling and reconstruction of the marriage institution through its severance from the natural family unit.
Barend Vlaardingerbroek PhD is associate professor of education at the American University of Beirut. He also holds academic qualifications in science, arts/humanities and law. Feedback welcome at email@example.com.