Does a Marriage Really Need Sex? A Critical Analysis of the Gender Restriction on Marriage

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INTRODUCTION

Marriage seems like an uncomplicated institution at first blush. Many people, beginning in childhood, think that marriage is something for which they should strive as a routine part of adult life. It seems that much of a person's life, particularly in the younger years, is devoted to finding that "special someone." A problem often arises, however, when that special someone is not who society expects, such as when that person is of the same-sex, is transsexual, or the individual is intersex. (1) The topic of marriage then seems to become extremely complicated.

Opponents of same-sex marriage argue that marriage should remain limited to a union between one man and one woman. (2) This definition categorically excludes homosexuals, transsexuals, and, presumably, intersex individuals. The most common rationale for limiting marriage in this manner, however, is circular: marriage should be limited to between one man and one woman because that is the way it has always been. (3) Nevertheless, many other long-standing practices have changed to reflect changing social values. (4)

The legal limitation on the definition of marriage to the union of a man and a woman has drawn courts into the difficult business of adjudicating sexual identity, raising concerns of fairness and individual freedom. (5) For example, courts have had to determine whether a transsexual is defined by pre or post-operative sexual identity. (6) Even more problematic are situations involving intersex individuals. If a person's genitalia or chromosomes are ambiguous, binary classification into "male" or "female" is virtually impossible. (7) Indeed, an intersex individual may be precluded from legally marrying anyone because she meets the definition of neither man nor woman. (8)

Marriage is a fundamental right, (9) therefore, it is questionable that an intersex person could be constitutionally precluded from exercising that right altogether. (10) This entire group of people should not be deprived of their fundamental right to marry merely because they do not fit the definition of "male" or "female." Nevertheless, because they do not fit these definitions, there are considerable problems in determining whom they are legally able to marry. (11) The question then is, who is the "opposite sex" of an intersex person for the purposes of marriage?

Part I of this Comment discusses the constitutional protection of the right to marry, intersex conditions, and case law regarding intersex, transsexual, and same-sex marriage. Part II discusses the consequences for marriage when it is narrowly defined, not only for intersex people, homosexuals, and transsexuals, but also for heterosexuals. Part III presents the resolution reached by most courts and proposes an alternative solution. Part III also asserts that because an intersex person is a combination of both male and female characteristics, she should be able to self-designate her gender and, even if she has physical characteristics that are mostly female, (12) be able to marry either a man or a woman. Further, this Comment argues that if an intersex person can marry either a man or a woman, then a male-to-female transsexual and a genetic woman (13) must also be able to marry either a man or a woman because all are similarly situated and must be treated alike under the Equal Protection Clause of the Fourteenth Amendment.

I. BACKGROUND

A. Constitutional Protection of Marriage

1. The Fundamental Right of Marriage

For over sixty years, beginning with Skinner v. Oklahoma, the United States Supreme Court has recognized that the right to marry is a "basic civil right." (14) Generally, classifying a right as a basic civil right means that the exercise of that right cannot be unreasonably burdened by the government. (15) Further, both Loving v. Virginia (16) and Zablocki v. Redhail (17) reaffirmed the Court's holding in Skinner, stating that "marriage is a fundamental right" and giving the right to marry constitutional protection. …

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