Δαφνη Ευτυχια Αρθουρος

Something I have to get off my chest so I can get back to more personally urgent items on my to-do list...

From a Planet Out article about a recent Ohio court ruling that a heterosexual couple may not marry under state law if one member is transsexual:

Although Jacob Nash was born female, he changed his sex in the late 1990s and obtained a revised birth certificate from his home state in Massachusetts. Nonetheless, the Ohio courts have continued to ignore this legal document in denying him the right to marry his partner, Erin Barr.
 
In a Dec. 31 decision, which is expected to be appealed, Judge Diane V. Grendell insisted that the U.S. Constitution's Full Faith and Credit Clause might require Ohio to respect Nash's Massachusetts birth certificate, but it does not require Ohio to take the extra step of declaring Nash a male under Ohio law.

The judge turned to a dictionary and picked biological definitions of "male" and "female" (I don't know about her edition of Webster's New Collegiate, but my 1967 Webster's Seventh New Collegiate Dictionary has some wiggle room) and decided that since Jacob Nash lacked "organs to produce spermatozoa for fertilizing ova", he must be female. Note that this conveniently ignores the fact that (assuming Nash is post-op) he also no longer meets the definition of female the judged used: "the sex that produces ova or bears young," Since the decision was based on a prohibition of "same sex" marriage, and according to the definitions the on which the judge based her decision Nash is neither male nor female, how is he the "same sex as" his fiancee? (According to the article, the judge did not base her decision on the argument that a female can only marry a male and vice-versa, only that a female cannot marry a female and a male cannot marry a male. So if Nash is neither according to these definitions, then there should be no prohibition against this wedding. But, of course, that's based on my reading a short description of the judge's decision, not the text of the decision itself, so I may be missing crucial details of the judge's opinion.)

It is interesting (though unsurprising) that judge Grendell (at least here) considers female to be the default sex -- if one fails the test for "male" then one is female regardless of whether one meets the definition of female otherwise. I do wonder whether she would have ruled the same way if the petitioners had been a born-male and a m2f transsexual. Would she have used the same test -- "can't produce sperm; must be female" -- or would she have flipped the entire argument -- "can't produce ova or bear young; can't be what she claims to be"? That is, is this

• a culturally ingrained gender bias that says "not male" is an inferior social status and therefore claims to maleness are subject to closer scrutiny than claims of femaleness, or
• a matter of finding excuses to reject the very notion of a sex-change?

I also wonder whether she would have ruled differently if Ohio law said that marriage was to be between "a man and a woman" instead of "two people not of the same sex."

Anyhow, chalk it up as yet another case that would be so much less complicated if governments stopped trying so hard to discriminate on the basis of sex.