An Open Petition for Redress of Grievances to the United States Supreme Court and all Citizens

October 19, 2009

This is a plea for judicial relief from an intolerable tyranny of the majority that has been codified in both the Colorado Constitution as Amendment 43 and U.S. Federal law under the Defense of Marriage Act. There is considerable injustice in our country today, but that which is written into the law is particularly detestable to all who love freedom.

I make this plea on behalf of friends and family who are denied a fundamental human right: to choose a partner for life and to make a legally recognized commitment "for better or worse, until death do they part". I also make this plea on behalf of my family and friends who currently enjoy their marriage rights, but risk losing them or being subjected to unreasonable searches to maintain them some day, due to poorly written laws that are in conflict with what science knows.

It is time to revisit something that was unanimously asserted by the Supreme Court 42 years ago in Loving v. Virginia:

I believe that the same deprivation of liberty to all still exists today. I believe it can be shown that existing laws such as the Defense of Marriage Act and Colorado's Amendment 43 do not defend the institution of marriage, but actually imperil it. And above all else, I believe I can show beyond reasonable doubt that they are unconstitutional and must be overturned.

The fundamental problem with the laws as written today is plain enough for a layman to understand. Still I would entreat the Court to seek testimony from medical professionals and scientists and not take my word on these facts when the time arises. The Court needs to look to science and then use reason to guide our way through a climate of fear and prejudices. I am a layman with respect to both the law and science, but I believe if you will give it your serious and learned consideration you will concur and share my concerns.

The current problem with the law is that it assumes sex is a binary condition and that we are all born as male or female. Science tells us this is not true in at least 1% of all human births. The process by which a person's biological sex is determined in the uterus is fairly well understood, and at least some of the mechanisms of how intersexuality can develop are understood now too. Some people may assert that the intersexed condition is a disease or defect, but I do not believe science necessarily supports that conclusion in all cases or that this determination would substantially change these arguments. Science has an equally hard time providing a definition for "disease" as it does "man" and "woman" in these cases. What is medically one man's disease (and protected as a class by condition of disability) may be another woman's sexual identity (also protected as a class). Regardless of how it is perceived, it is still a condition of that person's birth to which the law should be generally blind when determining if they have rights. Most rights, after all, are not something granted to us by the state if we meet special conditions, but are inalienable rights with which we are born and which the state must never deprive us without due process. The longer we ignore the truth the harder it will be to correct the injustice that discrepancy in legal and scientific understanding creates.

Some day I believe that the right to choose one's own sexual identity will be recognized as the most fundamental form of human self-determination, without which all other rights suffer, and it will be legally protected as a basic human right. There are people identified at birth as male on the basis of a penis, but who possess an apparently female brain with female desires. Whatever the basis for discrimination in that case, whether by disability or sex, it is un-American, unconstitutional and intolerable. In truth, many of us who have no gender identity concerns could still be intersexed to a degree and not even know it.

In the case of a person who is clearly born with an X chromosome but male genitals, or a Y chromosome and female genitals, our current legal definitions of sex are broken. The Court might choose to address this some day by attempting to more precisely fix the definition of "man" and "woman" according to one or more specific identifiable physical traits, but I believe that approach is highly dangerous and would ultimately violate the 4th Amendment's protections against unreasonable searches.

To the very simplest and most indisputable case for a third sex, I would present the small number of apparent hermaphrodites who are born with both male and female genitalia. Any law that defines a marriage as between "one man and one woman" must surely risk denying such a person their right to marry, as their biological sex identity is completely open to dispute. Some intolerant members of our society will realize sooner or later that they can use these laws to start challenging the legality of marriage licenses issued to people they suspect of being intersexed. Such challenges have the potential to ruin families, careers and lives, whether they are valid or not. There are many important things at stake in this highly complex set of issues.

I believe it is time to legally define a third category of sex that comprises all the ranges of sexual identity that are not discernibly male or female in the most classic scientific sense. I believe that people who are intersexual ought to be able to make a legally recognized third choice on any government form containing a field for sex. I also believe that we should take care to not compel public disclosure of intersexuality either, in a society that is as intolerant as ours is today. Disclosure may well bring recrimination and violence. Some of the most ignorant among us will still try to argue that they have the right to know "what" they are marrying and demand these tests. In truth, many intersexual people do not even know of their condition, and such forced disclosures later in life will often do more harm than good to an individual and to society as a whole. I suspect that science will some day better identify more than three distinct genders. What we know for certain today is enough: that there are more than two, and that is the essence of the legal problem that can and should undo the larger injustice of denying gays the right to marry.

The legal issues of intersexuality are clearly very, very difficult, but that does not mean we should shirk from them and allow injustice to prevail. I believe that the Defense of Marriage Act and Colorado's Amendment 43 both fail constitutional tests in light of the non-dualistic nature of sexual identity. Here's the part of DOMA that really catches my eye:

The most interesting phrase here is "person of the opposite sex". Which sex is opposite of someone who is intersexed? I submit that as written the law excludes them from ever being a 'spouse' to anyone else. An even bigger problem that affects everyone, and the reason why the Court should not create specific tests for determining sexual identity, is that making an exact determination (insofar as it is possible for the 99% of "normal" people) would almost certainly require submitting to invasive and unreasonable searches of one's genetics and genitalia. We would not be able to issue marriage licenses without strip searches, x-rays and tissue samples to ensure that intersexed individuals are not marrying. And by that point we'd really have to ask why an entire class of individuals has been denied all access to this essential human right by a condition of their birth.

Some might try to settle this by arguing that just the 1% of clearly intersexed people should have the right to marry either a man or woman, but that is tantamount to recognizing the intersexed as a third sex, and hence we'd be denying a certain freedom (to chose a marriage partner of either sex) to the other 99% of our country by a condition of their birth.

Some people seek sex re-assignment surgery. In Colorado, they may legally change their sex as it appears on their state driver's license, which appears to be the primary legal ID required to obtain a marriage license too. So there may be a kind of loophole in Amendment 43's definition of marriage as "only between a man and a woman". If I am in love with someone of the "wrong" gender, I could seek reassignment surgery and thereby obtain my right to marry or ask them to do the same. I submit that this would constitute a violation of the Eighth Amendment's prohibition on "cruel and unusual punishment" to deny such a right to not just one but two persons until one of them has elective surgery.

Further, if I am legally married to a woman and then have such surgery and legally change my gender, is my marriage no longer valid? Can surgery and some paperwork really invalidate a contract like this by accident? Should it? Who comes to take that marriage license back when that happens? The fact that biological sex is not wholly immutable conflicts with the law in several ways that I can only begin to imagine. I still maintain the Court needs to struggle with and rule on some of these issues, no matter how difficult or unpopular they may be. In fact, it is precisely because these are difficult and unpopular that we need judicial relief. Congress and the people of my state have failed all of us by making such narrow definitions of marriage as to open them all up to possibly baseless challenges that could only be defended against by submitting to unreasonable searches. I fear that those who wish to defend marriage rights may need to start challenging marriages in order to have their cases heard, but there is no guarantee of a good outcome for any party, including the state, when that happens. It is certainly a tragedy if a couple shows up in Court to dissolve their union because they cannot remain civil with each other, but I assert it would be true tyranny for a Court to dissolve a marriage against the couple's will. It may not be a matter of "if" but "when" a law that was intended to protect marriages is used to destroy them.

Just as the larger injustices of anti-miscegenation laws were in part exposed by the fact that some interracial people were completely barred by law from marrying anyone, so too are intersexed persons a signpost in the larger injustice today. A person's sexual identity is far more complicated than answering the age old "innie or outie?" question of what is between their legs at birth. I posit that the total sexual identity is actually a dynamic creation of many factors: overall brain structure and chemistry, genitalia (visible plus internal, any of it possibly altered by surgery, in some cases at birth by horrified parents or for religious/cultural reasons), hormones (also frequently altered, both intentionally and by inadvertent exposures), genetics (fairly fixed), epigentics (the real wild-card - how that fixed gene responds to changing environment and behavior), family beliefs, cultural beliefs, religious beliefs, etc. Some things are more set and less mutable than others by the time of birth but I don't think the law needs to be overly concerned with the question of whether orientation is born or chosen, because the ambiguous cases of intersexuality are sufficient to prove the larger principles such that it no longer matters. I know that the law today does not appreciate the complexity that is the dynamically inter-created identity of biological sex, gender identity and orientation. It could not be further from a simple "Male or Female?" question. A gross oversimplification of biological facts has created a gross injustice.

As I prepared this plea there has been recent news of a Justice of the Peace in our country that has apparently refused to marry an interracial couple. After 42 years, it seems that the whole country hasn't yet heard what was written in Loving v. Virginia. It is clearly time for the Supreme Court to reaffirm and expand on that decision, and help our nation take the next step toward fully realizing the dreams of "liberty and justice for all". What was true in 1967 about race is true in 2009 about sex and gender identity with just three small changes:

I would be remiss to not address the matter of "our very existence and survival" in this context. Many oppose homosexuality on the grounds that such unions don't produce new life and are against society's bigger interests of perpetuating itself and growing in numbers. Obviously, in vitro fertilization allows for lesbians to conceive and raise twice as many children as heterosexual couples ever could in the duration of their marriage. If our goal is to breed more Americans, then we should encourage this practice. And there are no shortages of children in need of foster homes or adoptive parents. Surely two loving gay parents are better than none? Again the ignorant and fearful voices can be heard protesting that the gays will raise the adoptive child to be gay too, and hurt society even more by promoting an "immoral lifestyle".

These are functionally the same arguments from the same segment of our society that were being made against interracial marriage in 1967. That is one reason why I am connecting the two. The reality today is that there are adult children raised by homosexuals who are heterosexual and apparently, not predisposed towards immoral behavior as a group. Again the Court should seek testimony from such individuals and learn whether there is truly compelling evidence to deny gays and lesbians the right to parent children if they have the means to support them and have demonstrated a commitment to each other. The evidence on the other side is just as compelling that homosexuality isn't something learned from parents, because so many gays and lesbians have been completely rejected by their families for revealing their sexual identity. I have heterosexual friends who have homosexual parents and vice-versa. My own experience tells me that I cannot chose to be different and love someone of a gender to which I'm not attracted. Just because my attraction is considered normal by society doesn't make it better or more deserving of protection under law. My gay friends tell me they feel the same way I do regarding their preferences, and most say that is always how they've felt, for as long as they can remember. When I hear those stories I know the laws I cite and many in other states are unjust and must not stand if we truly love and cherish our liberty.

One of the primary reasons that we have a judicial system is to protect us from our neighbor's ignorances and biases, and to address cases where our rights are in conflict with each other. The law can never know our real sexual identity as "male or female" even with an unreasonable search in at least 1% of cases. I believe that the law should treat all people as potentially intersexed and legally neuter to the greatest degree possible. There may be some areas where this principle cannot apply. True paternity, for example, concerns sex but does not necessarily need to concern itself further with an individual's self-identity since genetic testing is always sufficient to prove the paternity case anyway. Discrimination or harassment cases may also require setting aside this principle in order to consider the facts of a complaint. Again I know that a more accurate understanding of what science tells us sex is will complicate the law, but I insist we must find a way to accommodate it. The further that law drifts from the truth, the greater the threat it becomes to the liberty of all.

The fundamental purpose of DOMA and Amendment 43 is to deny gays the civil right of marriage. It was wrong when we did it because of skin color and it is wrong now when we do it because of what is between a person's legs or in their genes (and here I narrowly avoided the obvious pun). There is no rational interest of the state being served by these laws - they are motivated by "animus towards homosexuals" just as Colorado's Amendment 2 was. The Court decided that issue in Romer v. Evans by 6-3 vote:

I see no functional differences between Amendment 2 and Amendment 43, when the dust clears. They are both wrong for the same reasons.

If the law does not keep up with science, it is doomed to be overrun by it. There is a legal basis today to challenge the validity of marriages and by extension, to challenge any married person's sexual identity itself. How far will you and your spouse go to defend yours? Until the law changes, this is not merely a rhetorical question. Therefore, I also make this petition on behalf of the married members of the Court too. These aren't "my" rights I'm arguing for in any sense, but "our" rights and I hope it is becoming clear why you should care and consider how you can take action to correct such an egregious mistake.

Even if that is all agreed upon, I do still realize that some of the Honorable Justices and many of my fellow citizens hold religious views that condemn homosexuality as immoral. I would honestly like to find an acceptable compromise and believe we have bigger issues to resolve for our long term survival than this one (energy and water most particularly). Marriage has a long and venerable tradition as a religious institution, and no faith should be forced to sanctify every civil union that the state permits. We are a secular society and we don't expect that a birth certificate ever certifies a baptism or christening, so why should a civil union license affect any church's marriage ceremony? I do strongly believe that there is no reason to provide a special type of license only for homosexuals. All consenting adult couples should be getting "civil unions" from their state and nothing more, nothing less. Let marriage wholly revert back to being a religious tradition and let's call this civil contract we all sign something else (likely while also doing away with inaccurate and biased legal terms like husband and wife in favor of the more neuter spouse wherever possible). Sometimes language is itself a huge part of our problem, and I again ask the Court to consult with experts in the field to help navigate terminology and to help them remain aware of their own linguistic biases when ruling on such matters.

After the state's civil union process is opened to all, couples will still retain the freedom to hold private marriage ceremonies with their fellow believers in their church. There is no threat to religious liberty in this act, as some assert. I don't know if or how the Court might possibly endorse this idea since so much of the process is set by individual states, but it is what seems fair and truly American to me. I do see the potential for compromise very clearly here, and the reason this petition to the Court for relief is also an open letter is because I don't believe we can possibly have equality until all Americans truly understand and share these same basic principles of law.

We need judicial activism now to save us from our own stupidity and shortsightedness (after all, what good are judges who will not act to protect our rights even when they see them being violated?). I liken the Court to the emergency responders who have to save the man that just shot himself in the foot. Clearly, the people of my state have shot themselves in the foot twice over the last two decades. Further judicial relief only goes so far, in the end. A large part of this is up to the states to fix, so I hope that all members of the judiciary and legislature at every level across our country will affirm all these principles in the end.

We need to more deeply understand why it is wrong for the majority to deny a right to a minority, even if it is a 1% minority. These aren't "gay rights" but "human rights" and you shouldn't care about them because you are gay, but because you are human. If you can deny a gay person a right today based on their sexual preference, you might some day find your own rights challenged on the same grounds of orientation. It is in everyone's rational self-interests to have the law remain as unbiased as possible about the circumstances of our birth where it concerns things like race and sex. That is the basic principle of "equality under law" that is threatened by DOMA and Amendment 43.

If today was an average day, five babies born here in the U.S. had visible intersex traits, and quite a few more probably have an invisible discrepancy with their assigned sex. Some of those parents faced amazingly hard choices today about their children's future that I personally would never want to have to make for another human (and this is an entirely separate area that the law should begin to consider delicately and with the greatest amount of compassion it can muster after hearing many stories from the intersexed people who have had to grow up with a bad decision their parents made for them at birth). I do not know for certain if those babies were created by God with immortal souls just as they are (perhaps to teach us more about humility and love?), or if maybe those babies are a side-effect of the various evolutionary benefits that sex provides us, or if maybe those babies are a result of the additional hormones we feed our livestock that are causing some abnormalities and mutations, or if maybe they are some combination of all of that and other things I can't wholly imagine yet. Regardless of how they came to be, it wasn't their "choice" to have a discrepancy between their genes and genitals, and that argument should be completely dead now in the larger context of whether or not intersexual and homosexual American babies deserve to have their most basic human rights honored as they grow up in our country. If it still needs another nail in the coffin, we can debate whether being a "born-again Christian" is a choice or not. If sexual orientation isn't worth protecting because it is chosen and not inherited, then neither is much religious belief.

Sex has long been a puzzling mystery to people studying evolutionary biology, but answers are coming. It seems that the most likely reason we reproduce sexually instead of by cloning is because it gives us benefits in a long struggle against various parasites in a process known as co-evolution. Sexual reproduction provides a better way to shuffle the deck it seems, and dramatically accelerates the process of evolution. There may yet be benefits to having this intersexual expression in nature that we don't fully understand. Unfortunately, we are all too likely to judge and condemn what we don't understand when all we really need to do is look with forbearance and learn more about what it really means so that we don't have to fear it.

Several times while composing this plea I have reflected on the fact that in some ways, women still don't have the same degree of protection under law that men do in our culture (specifically with regard to the failure to ratify the E.R.A.). I also recognize that the evolution of sex necessitates some huge differences in the biological facts of our condition, and that when I call on the law to look at people as neuter, I am not only scratching on another even larger injustice that festers still but also posing a dilemma with regard to other areas of the law to which I don't yet see. I submit that John Stuart Mill still has much to offer on this, and that we would do well to look again at both On Liberty and The Subjection of Women in relation to all these questions and challenges I am posing. If intersexuality is a third (or more) form of gender, many of the arguments in the latter work may be applicable and worth reading again as well.

I thank the Court for its time and ask it to earnestly consider this petition and to take action when the next opportunity arises to preserve equal protection under law where it regards the right to form a civil union. No citizen should have to wait indefinitely for a suitable case to arise in order to obtain their basic civil rights, but I also recognize how this Court works. We may never have the perfect test case to make all the necessary changes needed to fix the fundamental flaw of sexual dualism in our law. Ultimately, the Constitution itself probably does need to be updated with regard to the facts of intersexuality, but that is clearly beyond the scope of this plea.

I leave you with a quote from the German poet Rilke that is my inspiration on this subject. My understanding is that Rilke's mother was so distraught she had given birth to a little boy that she dressed him as a girl for years. Contained in this is a challenge to us all:

Comments may be posted here.

There are other voices that also inspire me on this issue.
I would be remiss creating this site and not linking to
Keith Olbermann on Proposition 8
John Shelby Spong's manifesto
Philip Spooner's speech.