What is "same-sex" marriage?

Earlier this year, two major cases on “same-sex” marriage were brought before the Supreme Court of the United States (SCOTUS). These cases challenged the legality of the Defense of marriage Act  (DOMA), a policy put in place under former President Bill Clinton that limited recognition of marriage at the federal level to marriage between a woman and a man, and challenged  Proposition 8, a 2008 ballot initiative in California that explicitly disallowed the state from recognizing “same-sex” marriage.

When these cases first came before SCOTUS in March, I wrote a blog post discussing the conflation of gender, sex, and sexuality in news media discussions of the cases. It seemed to me that the words “gender” and “sex” were being used quite a bit to discuss the cases in the media, when in fact the issue at hand was one of sexuality and sexual identity. That is to say, what upsets people about two women getting married is not that they are both women, but that they are not heterosexual women.

Last month, in an exciting turn for LGBTQ rights activists, SCOTUS issued rulings in both of these cases, striking down DOMA and making federal benefits available to married “same-sex” couples, and allowing California to resume issuing marriage licenses to “same-sex” couples by declining to rule on Proposition 8. These wins at the federal level are considered big steps forward in promoting the civil rights of people who do not identify as heterosexual, because they will allow these couples tax breaks, health benefits, and the right to sponsor green cards for foreign-born partners - an especially important right now that a new immigration reform bill has gained wide support in the Senate. 

However, the use of the words "gender" and "sex", as opposed to "sexuality" and "sexual identity", still needs to be examined.

Perhaps the best illustration of this point appears on a comic site. The post features photos of signs held by same-sex marriage supporters outside of the Supreme Court on the day of the DOMA and Proposition 8 rulings, and the sign I find most telling is one which reads, “All marriages are same-sex. You get married and, every night, it’s the same sex.” Not only do I appreciate this sign-holder’s sense of humor, but the interchangeable use of the word “sex” here is a great example of the problem the media seems to be having. Take, for instance, this opening line from a recent story in the New York Times  about the Supreme Court rulings: “In a pair of major victories for the gay rights movement, the Supreme Court on Wednesday ruled that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there” (author's emphasis). One could argue that “same-sex” implies “gay” here, and several lawyers have pointed out to me that the language of court decisions necessarily draws from pre-established legal precedent, which then gets translated into the media.

These are the times when it tends to be most important to question widely accepted uses of culturally salient words and phrases, and  I would argue that language should not be taken for granted simply because certain uses for certain words have already been established.

So, here is the problem; the words “gender” and “sex” are often used interchangeably in public discourse, with “sexuality” thrown into the mix as though it bore little or no relationship to either gender or sex. In the social sciences and beyond, scholars such as Anne Fausto-Sterling, Kate Bornstein, and Rebecca Jordan-Young have long recognized that “sex” is biological, “gender” is a social identity, and “sexuality” relates to erotic desires. Further, these scholars suggest that although we define these terms separately, we must also recognize that they are interrelated. As feminist scholar Judith Butler has established, there is a prevailing social expectation that a certain kind of genitalia always naturally corresponds with a certain gender identity. However, this is by no means true. There are many people out in the world who identify as transgender or intersex, such as Coy Mathis, the transgender elementary school student who was recently granted the right to use the girls’ restroom at her school by the Colorado Division of Civil Rights. Cases like this provide us with ample evidence that the relationship between biological sex and social gender is not so straightforward as we are often led to believe. When we add sexuality into this mix things get even more complicated, because there is also an assumed link between gender and sexual identity. We often tend to assume, for example, that biological women (sex) act “feminine” (gender) and sexually desire men (sexuality), while biological men act “masculine” and sexually desire women.

These assumptions leave little or no room for a range and depth of genders and sexualities beyond the dyadic female-male opposition. In a recent post for openDemocracy, Ray Filar eloquently argues this point and suggests that people who identify as genderqueer are opening up new possibilities for gendered identities. Unfortunately, though, it remains the case that any reversal or break in the neat, linear chain of sex-gender-sexuality often tends to make people uncomfortable, for example,  biological men who act feminine and desire men, and biological women who act masculine and desire men, etc.

Thus, by referring to “same-sex” instead of “gay” marriage, the media suggests that the DOMA and Proposition 8 hearings are a matter of biological sex divorced from sexuality. I suspect that this kind of language made it into mainstream discourse - both legal and in the media more broadly - because so many people have been uncomfortable with the idea of non-heterosexual marriage for so long. Although it should be recognised that U.S. public opinion has shifted dramatically in recent years, and there is much speculation that this shift in opinion had an effect on the SCOTUS decisions. 

But, aren’t we really talking not about the sex of people who marry, but about their sexuality? Further, if we call it “same-sex” marriage, does this mean that if a transgender man goes through gender reassignment surgery to become a woman, she can marry her female partner only in states that allow “same-sex” marriage? Where do we draw the line when we define “same-sex”?

With these questions in mind, I suggest that referring to “non-heterosexual” marriage might be a good way to move forward. This terminology recognizes that the issue is one of sexuality, but is also more inclusive than “gay” marriage, i.e. marriage between two women or between two men. Although U.S. policy may not yet be ready to move further on the marriage question just yet, this terminology leaves open the possibility that one day we will legally recognize the right to marriage between any two consenting adults, across a broad spectrum of gendered sexualities.