Why is the state allowed to define sex for the purpose of assigning rights?

This question has been simmering in the back of my mind for a long time. # Link in context

As a result of covering stories related to LGBT rights, and particularly, debates over hate crimes (see the “small murders” section) and same-sex marriage, it occurred to me that laws that use sex as a criteria for assigning marriage rights require the state to define a person’s sex. I am using the word sex here as a matter of biology, as opposed to gender, which is a matter of cultural performance. However, not everyone has a clear sexual identity, especially at birth. Given the variation in human biological sex that exists in nature, it’s hard to see how the state can define who is a same-sex or opposite sex couple without violating the equal protection clause of the constitution, which requires that laws be applied equally to all. # Link in context

Whose rights are affected by laws assigning marriage rights on the basis of sex? Transsexual people who have been medically diagnosed with gender identity disorder have the outward appearance of being one sex, but have brains wired for the opposite sex. Transsexual people may have same-sex or opposite sex orientations. There have been legal cases in which the marriages of transsexuals to people they view as their opposite-sex partners have been invalidated by judges who insisted that biological sex is fixed at birth, is revealed by external genitalia, and can’t be changed. # Link in context

However, intersex people may be born with ambiguous genitalia, or may present as one sex at birth and find at puberty that they have the sexual anatomy of the opposite sex. Parents and doctors guess the gender with which the newborn is most likely to identify, and they don’t always get it right. If you have someone who appears to be female, or is classified as female at birth, and who is ultimately determined to be male, what gives the state the right to decide whom that person is allowed to marry? Should that not be a private decision? # Link in context

I don’t think that taking the legal definition of sex out of the hands of the state would invalidate sex discrimination laws, or keep private organizations from having membership or hiring criteria based on sex. For example, the Catholic church can continue to insist that all priests be male based on they perceive a male to be, because they are a private organization. An employee can still sue for sex discrimination based on their self-identification as a member of a particular sex, their employer’s identification of them as a member of a particular sex. All I’m questioning is whether the state has the right to determine who is of a particular sex. # Link in context

In my mind, none of this is related to moral beliefs anyone might have about homosexuality, transsexualism, or gay marriage. I’m simply asking whether this is something that belongs in the state’s purview? # Link in context

I’m not a lawyer, so there is a very good chance I’m missing something. Any thoughts? # Link in context

CC BY-ND 4.0 Why is the state allowed to define sex for the purpose of assigning rights? by Kim Pearson is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.


  1. Nordette aka Verite says

    I admit that the whole discussion of abandoning gender definitions confuses me. I know I read posts by people who believe the Semenaya case is another sign that society should abandon defining gender completely. While I think the way he handle the matter of intersex individuals right now is rather backward, I’m not sure abandoning gender distinctions completely is the way to go.

    I think your question however is more related to the question of why is the state involved with marriage at all, except to protect minors from being married to adults, prevent incest and financial fraud related to financial matters like property ownership and inheritance.

    I’m not ready for the gender discussion of what is male and female. I’m still grappling with ideas people present saying the terms heterosexual and homosexual are irrelevant. Maybe that case can be made legally, but not in personal relationships to me.

    I know. I was no help at all with your question. 🙂

    • professorkim says

      Hey Nordette,
      Thanks for commenting. I actually do think there is an argument for the state to be involved in the contractual aspects of marriage. I’m also not arguing for the abandonment of gender distinctions. What I am asking is whether the distinction should be made by the state, as opposed to private parties.

      And I understand why the discussion of gender, as well as sexual orientation can be challenging. I think people have a right to their personal beliefs and comfort levels in their personal relationships. I’m not sure how much I would have pushed myself to understand these issues if I hadn’t found myself having to help my students report on a story involving a transsexual trustee on our campus. I must say, though, that I am grateful for the education, because it made me aware of an entire area of privilege that I had not understood before.

      Thanks again as always, my friend.