The issue of legal recognition for same sex partnerships has become polarized into two camps – those who believe in marriage equality, and those who believe that only heterosexuals should be able to get married. This entrenched polarization has entirely obscured the fact that there was, for a time, a third option, namely legal recognition for same sex marriages via a separate institution called “civil unions”. I call this position of affirming protection for same sex relationships through the creation of a separate institution the “marriage dissimilarity” position. This is done to contrast it with both “marriage equality” and “traditional marriage”, where the former asserts that marriage is a gender/sex neutral institution, while the latter asserts that not only is marriage heterosexual, but that homosexual relationships have no right to legal protections under the law.
The argument levied against those who take the marriage dissimilarity position is that it is discriminatory to create a separate but legal institution for the LGBT community for the same reason that it was wrong to create segregated schooling, or prevent whites and blacks from marrying. There is, however, a very serious flaw in this assertion, namely that while striking down racial discrimination laws is grounded in biological reality, the decision for marriage equality is not.
Research has repeatedly shown that there is no biological reality to the concept called race, meaning that there is more genetic variation within so called racial groups than there are across racial groups. As such, a black person and white person chosen at random may be more genetically similar than two white people chosen at random. On the other hand, there are of course very clear biological differences between men and women, differences that are not merely salient, but critical for reproductive success.
The unwitting effect of having disappeared the salience of biological differences between homosexual and heterosexual relationships is the creation of a kind of “gender neutral” marriage, as well as a growing culture on the left of erasing biology altogether as meaningful in defining people. Given that it is women and girls who have been particularly victimized by this erasure by redefinition, it is curious that this erasure of female biology has been most lauded by the very people who also most often claim to have a politics grounded in feminism and equality for women. If one loses the ability to define the word “woman” to include that which sexually distinguishes her from a man, the notion of a feminist politics becomes entirely meaningless.
There are currently any number of people on both the left and the right who have pointed out the absurdity of denying base biological reality in the name of inclusion, yet there is a curious blindness on the left in recognizing that this same failed logic has already been applied in the arguments made for same sex marriage. This becomes quite evident when one points out the simple biological truth that only a heterosexual relationship has the possibility of creating a child without third party assistance. The person who does this is inevitably hushed and rebuffed and accused of being homophobic. From there the typical rhetorical move of the marriage equality advocate is to trivialize the role of sexual reproduction in marriage altogether. Given that it is the woman in the marriage who most bears the burden of sexual reproduction, the net effect is the derogation of women’s biology, and of heterosexual women’s sexuality, a mentality which we are now reaping the consequences of in the form of radical trans activism.
This promotion of gender neutral sexuality has led to an increasing number of gays and lesbians seeking to distance themselves from the sexual erasure being promulgated by trans activists who now insist that biological reality should not dictate sexual orientation. Their current resistance to this erasing of the salience of their own sexuality and biology ought to give them a greater sense of empathy for what they have unwittingly done to all heterosexual women by arguing that such erasure is an acceptable cost in the name of “equal rights”.
[As a bit of an aside, as a woman who identifies as a feminist, I certainly understand the underlying concern that an argument which says that sex based differences matter might be abused by men to take rights away from women. However, when we recognize that the purpose of the law is not to give “equal rights” in the case of sex based differences, but rather “appropriate rights”, we can continue to make the case for the expansion of women’s autonomy and independence. It is appropriate that women be treated as equal to men where sex is irrelevant or minimally relevant, such as in hiring the most qualified candidate for a position. Moreover, given the reality that the continued existence of the entire human species depends upon women’s biology, it is similarly appropriate to respect a woman’s right to biological autonomy. Indeed, equal valuing under the law requires that these sex based differences be acknowledged. If for instance health care between the sexes were made equal by simply capping the amount of money per person without regards to the difference in needs based on sex, the net effect would be an inappropriate level of care for women. ]
The difference in fecundity (defined here as the reproductive ability based on the availability of viable gametes) between homosexual and heterosexual relationships is not a trivial one. While hetereosexual relationships may be sterile, a homosexual relationships is always sterile. As such, the homosexual couple who desire to have a biological child will always require third party assistance. Moreover, in so far as this third party individual is not expected to be a meaningful part of his/her child’s life, the net effect is the obligate commodification of a third person’s biology in order to make a homosexual relationship reproductively viable.
The obligate commodification of a third person to serve a couple’s interests is not a trivial matter. Indeed, the commodification of human biology as a good to be bought, rented, or sold is an assault on human dignity. This is particularly evident when we examine the practice of commercial surrogacy across the globe. It is usually poor women, frequently those of color, who are being compelled by economic circumstances to rent out their wombs as incubators for those wealthy enough to pay. It is telling that commercial surrogacy services have been shut down in places where they previously existed such as India, Thailand, and Cambodia. Whatever arguments proponents of surrogacy might make in favor of it is nullified by the fact that almost every community in which it occurred eventually rejected it as abusive and exploitative.
Given that lesbians and gays have appealed to the notion of human dignity to argue for marriage equality, it is profoundly hypocritical to ignore the indignity that is reducing the parents of children to “gamete producers” and “gestators” who are otherwise entirely irrelevant to their children’s lives. Now, while lesbians and gays might correctly argue that heterosexuals also take advantage of these reproductive services, this is actually entirely missing the point, and again failing to account for the salience of sex based differences in homosexual versus heterosexual relationships. The heterosexual couple suffering from fertility issues who use a gamete donor or surrogate have within their relationship an ongoing valuing of the opposite sex as it relates to children which continues beyond the contribution of the gamete donor/surrogate. Within a homosexual relationship, however, there is no such ongoing valuing of the opposite sex, as such their relationship towards the opposite sex is entirely commodifying in relation to sexual reproduction.
The attempt to nullify salient sexual difference between homosexual and heterosexual relationships can also be seen in court cases regarding birth certificates in which lesbians and gays have essentially argued for the creation of gender neutral certificates that identify two males or two females. It would clearly be more appropriate to list the actual biological parents, and then create a secondary certificate of adoption/parentage which identifies the legal parents of the child, rather than advocating for the total legal erasure of the biological parent. Children should not be prematurely robbed of the right to know their biological heritage in the name of protecting their parents feelings, and this applies to both heterosexual and homosexual couples. The usual rebuttal for arguing that two women or two men should be able to be listed on birth certificates is that listing the husband instead of the sperm donor has been a common practice for heterosexual couples. In response I would argue first that a previous wrong doesn’t justify a current wrong, and also repeat that there is a meaningful difference between a situation in which there is an ongoing valuing of a father/mother versus the total commodification and erasure of the father/mother as occurs in homosexual relationships. It takes both sexes to produce a human being and acknowledging this reality on legal documents like birth certificates should be uncontroversial. I would further clarify that in cases where both egg donation and surrogacy are used, that both the donor and the surrogate should be listed given that both the genetic heritage and the biological labor of nurturing and delivering a child were necessary for that child’s existence.
As stated, while I do strongly believe that homosexual couples have a right to have their relationships protected under the law, I believe that the biological differences between them and heterosexual couples are relevant enough to require a separate legal institution. The evidence that the Obergefell decision was a poor one is reflected in the subsequent proliferation of the odious belief that the correct way to enshrine rights is by derogating or erasing other people’s sexuality and biological reality. If gays and lesbians can see that it is inappropriate for trans individuals to deny the reality of biology and sexuality as relevant, they should be able to apply that same reasoning to see why their argument for marriage equality is a poor one. Any failure on the part of LGBT people to acknowledge this truth will reveal them to be intellectually dishonest and disingenuous, and it is that revelation more than anything else that will eventually turn the American public against them.