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Sep 20, 2011

Is not gay marriage really an issue of gender?

Consider:

Laws which attempt to define/redefine marriage, or forbid homosexuals from getting married, don't, in fact, forbid homosexuals from getting married.

Even under those laws, homosexuals could get married, so long as they are of different genders. Similarly, heterosexuals couldn't get married if they were of the same gender.

Thus, it is not correct to say that it is discrimination against homosexuals. It's discrimination based upon gender.

A man can get married to a women, but not a woman. A woman can get married to a man, but not a man.

Rather than being pedantic, I think this is significant for two reasons:

First, the constitution doesn't address homosexuality, but does address gender vis-a-vis discrimination. It seems to me that a case could be made against such marriage laws on this basis.

Second, the fact that these laws turn on the basis of gender, rather than actual sexuality, reveals that it'd be impossible to enforce a law that discriminated based upon sexuality.

The second is tricky, admittedly. Certainly you can't prove the status of any one's sexuality, if only because sexuality is not defined in an entirely concrete matter. How are pansexuals or bisexuals to be treated? What about such cases where individuals engage in sexual acts among members of their own gender, but do not identify themselves as homosexuals? It's not a subject that, at this time, permits itself for legal enforcement.

However, there is one clear way that you can prove some one's sexuality: They admit it. Thus to exploit the grey area in discriminating against sexuality, you'd have to deny it, or at least play coy. This may be an issue of principle for some people, rightly believing that they shouldn't have to hide their sexuality in order to avoid discrimination.

Nevertheless, I think it's food for thought.

2 comments:

Shripathi Kamath said...

Interesting to look at it that way, which is exactly how the gay-marriage opponents couch it, ironically.

What they say is that homosexuals are not being denied marriage, they are free to enter into a marriage.

The key to their case is that the definition of a marriage requires members of dissimilar sexes.

I do not think that the gender discrimination aspect holds though. Suppose we say that a male wants to marry a male. Under the definition of a marriage, he cannot. His case could be considered gender discrimination if a female did not face the same restriction on the sex of her intended partner.

An example of this in practice is high school sports. Males are not allowed in female events and vice versa. Discrimination only applies if they only have male-only sports where participation is prohibited for females. Which is why in schools where they have baseball (typically male-only), women can legally try out for the team. Even if they have an equivalent sport of softball. Likewise for wrestling.

Lastly, think of discrimination based on religion. I'd say that it faces the same issues--there is no way we can prove if someone is a Christian--and yet we do enforce laws for religious discrimination.

But what if two people refused to cite their sex while getting married? It is not as if you are required to have gender tests. Some devious legislator should couch it as a privacy issue, perhaps starting with gun ownership ("to protect law abiding citizens, you must not require them to disclose their sex"), and then fight it on a marriage license.

Bretta Applebaum said...

Interesting view.

I think I will refuse to identify my gender (on paper) in the future.