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The Massachusetts Supreme Court advisory, stating that nothing short of marriage for same-sex couples would satisfy the state constitution, has sent legislators throughout the nation as well as President Bush scrambling to define marriage as between “one man and one woman.”  

These legislative attempts are doomed, because there is no clear, scientific and strict definition of “man” and “woman.” There are millions of people with ambiguous gender—many of them already married—who render these absolute categories invalid.  

There are at least three ways one might try to codify gender under law: biologically, psychologically and culturally. On close inspection, all of them fail.  

Biologically, one must choose either secondary sexual characteristics—things like facial hair for men or breast development for women—or genetic testing as defining markers of gender. Neither method is clear-cut. Some women show male secondary characteristics, and vice versa. Before puberty, things are not necessarily any clearer. A significant proportion of all babies have ambiguous gender development. It has been longstanding—and now, increasingly, controversial—medical practice to surgically “reassign” such babies shortly after birth so that they will have only one set of sexual organs.  

Sometimes doctors guess wrong, and children are “reassigned” and raised as males, when they are genetically female, and vice versa.  

In one condition, androgen insensitivity syndrome, genetic males are born with a genetic immunity to androgens, the hormones that produce male sexual characteristics. Though they are genetic males, these children typically grow up looking like females, although they have no internal female organs.  

Although figures are imprecise, experts in intersexuality, such as Dr. Anne Fausto-Sterling of Brown University, estimate that persons born with some degree of ambiguous gender constitute approximately one percent of the population. This means that there are two million Americans who may be biologically ambiguous.  

Psychologically, another dilemma for those who seek to codify gender is the condition known as gender dysphoria, in which a person feels that their true gender is the opposite of that in which they were born. These individuals are often referred to as “transgendered.” Some experts estimate as many as 1.2 million Americans are transgendered. Gender dysphoria is a matter of personal identity and has nothing to do with sexual orientation. A male-to-female transgendered person may be attracted to women or to men.  

Finally, human societies around the world recognize individuals who are culturally female or culturally male no matter what their physical gender. The “berdache” is an umbrella term used by Europeans to designate a man who is culturally classified as a woman, and who may be a “wife” to another man. The practice is perhaps best known among the Zuñi Indians of Arizona, but is widely seen in other tribal groups as well. Outside of North America, the hijra of India, a cultural “third gender,” is important in ceremonial life. Hijra are classified as “neither man nor woman,” but they may marry males. These examples of cultural gender ambiguity are only two among dozens throughout the world.  

If the United States tries to enact a national law defining gender conditions for marriage, it is only a matter of time before the law falters on one of these rocks of ambiguity. There are undoubtedly existing marriages where the wife is a genetic male or the husband is a genetic female. In a medical examination, if it is determined that this genetic fact is discovered, is the marriage then voided? When post-operative transgendered persons wed, whom will they be allowed to marry—persons with the opposite set of chromosomes, or people with the opposite set of genitalia?  

There has already been one Texas decision where two “women” were allowed to marry, because one of them had originally been a male. We can expect far more stories like this should this legislative circus proceed.  

PNS contributor William O. Beeman teaches anthropology at Brown University.