03/25/2013 06:10 pm ET Updated Feb 02, 2016

"One Man, One Woman"... Really?

Define "Man" and "Woman"

Those who seek to close all discussion of marriage equality speak of marriage as a sanctioned relationship, of "one man and one woman." Shouldn't they be obligated to define these terms with which they frame the argument -- "man", and "woman"?

It is really not a simple matter.

Yes, there are those who apparently neatly fit in these two categories; those with the requisite anatomies, who do not chafe at being the gender with which they are identified.

But overarching laws, policies, practices, and customs should be fair and just for all, not just for a proportion of a population. Such justice is what law is designed to protect.

The fact is, biologically and scientifically, that gender identity exists on a continuum, which is imprecise and indefinable, as opposed to two perfectly distinct categories into which every human can be assigned, and the discussion can be shut down.

Who would be approved?

We do not measure anatomy or body parts to designate gender. Consider the horrific image of calipers applied to penises and breasts, and someone in authority signaling who is biologically fit to be 'approved' as sufficiently male or female on this basis?

Equally horrifying is the notion of anyone granted the right to decree absolute male or female psychological or emotional traits. Who is tall enough, short enough, hirsute or hair-free enough, soft enough, hard enough, strong enough, graceful enough, assertive enough, aggressive enough, nurturing enough, fair enough, strong enough, etc., to be classified into one of two discreet categories?

Add to this lack of clarity the fact that science and medicine acknowledge a percentage of humans born who are deemed "intersex," because it is simply not possible to classify their genitalia as strictly male or female. And, where gender cannot be clearly assigned, how can "opposite gender" be defined? Should intersex people be denied marriage on this basis? (They, alone, should open the marriage equality door and close the controversy!)

Before marriage certificates are issued, we likewise do not measure hormone levels which also range on a continuum; and matters such as androgen insensitivity -- a biological factor which also undermines the gender binary -- also real, but basically ignored by the law. Yet we see Olympic committees struggling over the science of these issues, sometimes finding it challenging to definitively answer: which athletes are which gender? Should not the Supreme Court also address such challenges?

Who is human?

We must, therefore, question this notion that "man" and "woman" are perfectly valid legal designations for humans, any more than configuration or color are allowed -- any longer -- to classify anyone as not fully, legally, human.

Why does not this issue, alone, put an end to the discussion of marriage equality, under the law, and even under religious institutions? Should religions blithely dismiss a percentage of humans, (those who are intersex, as the clearest example), from having the rights to love another, and form the bonds of family life? When religions make decrees and proclamations in terms of "male" and "female", it is inconvenient when gender is not clear cut, but mustn't the essential question, "Who is human?", override "Who is a man or a woman?" If religions cannot grapple with such an appropriate question, then how valid can we hold such religions? (Convention alone cannot hold sway; science pushed even religions to eventually acknowledge the world is not flat; the sun does not revolve around the earth.)

Certainly, the law, which is presumed to provide overarching justice, beyond prejudice, and beyond mere custom, has to address this basic question.

Yet, this, surprisingly, has not much entered the worldwide conversation on marriage equality, which, by virtue of this matter, must go beyond any questions of who is "gay" and who is "straight." Those who would deny marriage equality apparently consider being gay a "choice," or a "lifestyle"; but biology, hormone levels, physiology, etc., bypass this entire discussion.

Who is affected?

It may be an inconvenient truth, but everyone has friends, relatives, neighbors, classmates and coworkers who are not just gay or transgender, but intersex, or somewhere on the continuum of orientation, gender identity, gender expression, and sex that science and medicine acknowledge is reality. No religious precept, or political, or social stance can undo this fact, nor the reality of the discrimination, assaults, teasing, bullying, depression, suicides and more, which are all influenced by public proclamations against homosexuality and marriage equality, and don't even bother to acknowledge the existence, or humanity, of the rest of the spectrum. (Ironically, however, everyone, including those on this spectrum, is the product of 'heterosexual' unions... so that, obviously, does not guarantee a heterosexual, or binary norm.)

I'm writing this on the anniversary of the eve of the death by suicide of a friend, who didn't fit into the neat dichotomy offered by those who would deny legal rights to, and a humane view of, an entire group of humans they choose to write off, ignore, or hope -- against all evidence -- that pressure, bullying, beating, prayer, gay 'cures,' or wishful thinking will magically transform.    

How would the rights, happiness, love, unions and families of others diminish the blessings and rights enjoyed by those who currently have such rights?  Does the suffering and agony of those who are deemed unequal enhance the lives of others?

Who marries? Who should?

Marriage is routinely entered into by a wide variety of people, for a wide variety of reasons, including financial, misleading or 'dishonest' ones -- reasons which do not necessarily include childbearing abilities or proclivities, the supposition of fidelity, 'sanctioned' sexual activities or any sexual activity, or, for that matter, heterosexual activities, or even commitment to continuing to present as the gender the two individuals presented as, when they entered into marriage. In other words, those who present themselves as male and female can legally marry, and then do pretty much whatever they like, and still enjoy the legal benefits of marriage.
Why, I wonder, are these -- along with my initial question of the biological gender continuum -- not the questions that are front and center as the Supreme Court looks at the issue of the justice of marriage equality in this country? And why will such questions not decide the matter, definitively?

By the same author at the Huffington Post: "The ABC's of Marriage Equality; H is for Human"
and "Conjoined in Marriage?"