Sept. 16, 2000, 7:51PM

Marriage, change form a union

Transsexual wedding shows sex is changing and complicated

Copyright 2000 Houston Chronicle

In the weeks before Saturday's historic marriage between Robin and Jessica Wicks, the couple's attorney made no bones about the fact that she hoped to attract as much attention as possible.

Phyllis Randolph Frye opted to represent the Houston couple, after all, partly to highlight what she said was the "stupidity" of a recent court ruling that meant Jessica is considered a man, regardless of the sex-change operation she had years ago. But Frye's appeals were not directed merely at the media and the transgendered. They also sought to energize the homosexual community.

"Items that gay and lesbian activists are still missing on this issue," Frye wrote in an e-mail update last week. "A): We are getting two women legally married. B): We are getting two women legally married. C): We are getting two women legally married."

A Texas marriage involving a transsexual may have been a hoot in some circles, but there was no mistaking its implications in others. No sooner did the news hit than observers and activists began pondering whether it heralded the coming legalization of same-sex marriage and the changed meaning of seemingly carved-in-stone notions of gender, sexual orientation and marriage.

In other words, are we on the brink of another revolution?

It's likely to be some time before a consensus is reached. A new Vermont law that allows gay and lesbian couples to be legally joined in a "civil union" similar to marriage -- thought by some to be a possible compromise model -- already is proving controversial. Five legislators who voted for the law were ousted last week in the state's primary election.

The Wicks' marriage was made possible by a loophole of sorts, a 1999 4th Circuit Court of Appeals ruling that said a person's sex is set at birth and stated on his or her birth certificate. No transsexual medical treatment, the Littleton v. Prange ruling said, can change one's original biology.

Transsexual and gay and lesbian activists immediately attacked the ruling as the homophobic agenda of the Religious Right, but in fact the author, Chief Justice Phil Hardberger, is an Ann Richards appointee with a reputation as a staunch liberal. (The court's other two judges voted on more traditional party lines -- a second Richards appointee dissented and the Gov. Bush appointee sided with Hardberger.)

The ruling gave Frye the idea to seek a marriage license for the Wicks in the 4th Circuit, a 32-county region west of Harris County that includes Bexar County. A Harris County clerk had denied the Wicks a license here, citing the Texas Family Code's prohibition against same-sex marriages. But a Bexar County clerk in San Antonio granted the license to Robin and Jessica, who was born a male, Grady Roland Wicks.

"It was very predictable that this was going to happen," said Julie Greenberg, a law professor at Thomas Jefferson School of Law in San Diego and the author of numerous articles on gender- and transgendered-related issues. "The Littleton ruling let the genie out of the bottle. The result is that in the long run, there will be a major rethinking of many of these issues, including why we're so resistant to gay marriage. In the last couple years, it's already become a more popular conversational topic."

The idea of gay and lesbian marriage may make for provocative talk, but as a legal institution it's still not winning over many converts. Polls show Americans oppose it by nearly a 2-1 margin, and presidential candidates Al Gore and George W. Bush both are on record as being against it. Among the world's other countries, only Denmark and the Netherlands give same-sex couples the right to marriage and all the trappings.

The trappings of U.S. marriage are significant. They allow spouses to share in benefits such as Social Security and Medicare; make medical decisions on behalf of the other in case of illness; obtain joint insurance for homes, cars, family health coverage; take sick leave to care for the other or children; inherit automatically in the absence of a will; choose a final resting place when the other dies; obtain domestic violence protection orders; apply for immigration and residency if the other is born outside the country; and many other things.

That fact hasn't been lost on homosexual couples where one member is transgendered. The Wicks represent the second lesbian marriage in the United States in which one of the parties had undergone a sex-change operation -- there was a similar though unnoticed marriage in Vermont a couple years ago -- but there are numerous marriages where one of the parties "transitioned" after a seemingly heterosexual marriage, Frye's among them. The attorney, who was born Phil Frye, also reports she's heard from a few new couples interested in marrying since the story hit.

Frye has appealed to the U.S. Supreme Court Littleton v. Prange, a wrongful death suit dismissed on the grounds that the widowed transsexual complainant was really a man and thus had no standing. Pessimistic that there is popular support for her cause, Frye hopes the case could become the Roe v. Wade of the transsexual and gay marriage movements.

But even though homosexual marriages involving a transgendered party are percolating in a number of other states -- there have been precedent-setting recent developments in California, Kansas, Ohio, Oregon and Utah -- court watchers say it's highly unlikely the nation's high court would select such a case because there are not yet conflicting state rulings to resolve. Still, Frye isn't the only person who thinks her best hope is in the courts.

"Change comes from the courts, not the people," said John Leo, a U.S. News & World Report columnist and conservative cultural critic who opposes same-sex marriages. "Elites know that it's easier to go around majorities than to convert them, that their best hopes reside with the whims of judges."

Whoever does ultimately decide the issue, it will require no small amount of wisdom, so murky are these waters. One's sex may have once seemed the simplest and most obvious of matters, but scientific understanding and advances the last 50 years have changed all that -- and in the process altered some time-honored definitions.

The hard fact of science, says University of Texas-San Antonio biologist Brian Derrick, is that some three dozen medical conditions can create sexual ambiguity in the human species -- anatomical men with female chromosomes, anatomical women with male chromosomes and all manner of mixes of unusual genitals and unlikely chromosomes between those two poles. The conditions affect between 1 percent and 2 percent of the general population.

Skeptics need look no farther than international athletic competitions. In 1967, Polish sprinter Eva Klobukowska was banned from the European Cup because a chromosome test revealed an XXY result, one too many chromosomes to be declared a woman; a few years later, she became pregnant and gave birth to a healthy baby. After 1 in every 400 1996 Olympic competitors was eliminated even though there was nothing unusual about them anatomically, the International Olympic Committee in 1999 suspended gender testing at this year's Summer Games in Sydney.

The most famous case of a person who felt trapped in another sex's body was Christine Jorgensen, who scandalized America in the 1950s when he went to Denmark as a man and returned as a woman, the product of a sex-change operation. "EX-GI BECOMES BLONDE BOMBSHELL" screamed a front-page headline in the New York Daily News.

Today, the procedure is fairly common. After much screening and counseling to confirm that a patient's gender identity truly conflicts with the anatomy he or she had at birth, doctors perform surgery to correct the body. They also give hormones to feminize or masculinize the patient.

"You change the body form to fit the gender identity," say Derrick, who has studied brain anatomy as an indicator of a person's sex. "Gender identity is in the brain. Sex is between the legs."

Just as confusing as sex or gender identity in a small percentage of people is sexual orientation. Consider the case of Frye, who became female without surgery (that is, without altering the genitals) and after marrying a woman. The couple considers themselves lesbian; some scientists don't agree.

Gender politics becomes particularly important in the legal context of marriage because of the religious or cultural significance of that institution. It historically has been about a man and woman, "a covenant built on the complementary nature of the sexes," as Bishop Joseph Fiorenza, head of the Diocese of Galveston-Houston and president of the National Conference of Catholic Bishops, puts it. Given that, says Bill Duncan, director of the Marriage Law Project at Catholic University in Washington, it does beg the question of what is a woman and what is a man.

Traditionalists worry that extending marriage to gays and lesbians would weaken an institution already reeling from a 50 percent divorce rate and TV shows like Who Wants to Marry a Millionaire? In their mind, it's a slippery slope -- what's next? polygamy? -- where marriage risks losing all meaningfulness, most of all its importance in raising happy, healthy children.

Advocates of same-sex marriage note that the institution has changed forms throughout history, from the time when wives were considered property rights to the time of political or arranged alliances to the time of polygamy; and argue that in an evolved society, it's a simple matter of fairness -- the government is denying benefits to a whole class of citizens. And to those who say marriage was intended for the purpose of propagating the human race, they note that many heterosexual couples are infertile, choose not to have children or simply marry past childbearing age.

What is clear, according to sociologists, is that the meaning of marriage has changed, even before these gender and sexual orientation questions arose. It may bode better for advocates of same-sex marriage than opponents.

"Young people today simply don't think of marriage as a child-raising institution," said David Popenoe, a Rutgers sociology professor and co-director of The Marriage Project, a university think tank. "In our surveys, they're almost unanimous that parents shouldn't stay together for the sake of the children and they have no idea why the state's involved in marriage. To them, it's a couple's arrangement, it's a vehicle for their soul mate and them."

So where does the transgendered and same-sex marriage issue go now? Most everyone agrees its best chances are in the courts, but they also warn against expecting anything overnight. The Wicks' marriage has more legal standing than Vermont's civil union (which has none), but it remains to be seen whether it would be accepted outside the 4th Circuit and outside Texas. (Because the 5th Circuit is "silent" on the issue of transgendered identity, the burden would be on Harris County to sue the Wicks if it wants to deny them benefits.)

In the unlikely event the U.S. Supreme Court in the near future agreed to hear a same-sex marriage case, most legal observers give it little chance of victory. Greenberg notes the current trend on the court is not to give sexual-orientation matters the most extensive legal protection it has set aside for matters involving race or even the intermediate protection set aside for matters involving gender.

Moreover, even if the movement wins court victories, it likely will then have to fight the battle in the political process. Courts in Alaska and Hawaii, for instance, approved same-sex civil-union arrangements, only to have them rejected in their state legislatures. Vermont's appears to have become a campaign issue in the electoral process.

Nor, for all the attention it's received, has the Wicks' marriage caused much of a buzz in gay-lesbian circles. National homosexual groups haven't paid much attention to it; Texas Lesbian Gay Rights Lobby Co-Chairman Steve Atkinson says the realistic view of the state homosexual community is that it's only a "tiny step forward;" and even Frye acknowledges the lack of response to her e-mail's attempt to energize the non-transgendered homosexual community.

Still, observers say it may just be a matter of time and finding the proper compromise. Over the last two decades, polls show slightly declining opposition to same-sex domestic partnerships or marriages and, more importantly, significantly higher support among the young than old.

"In the foreseeable future, I don't see same-sex marriages happening," said Lynn Wardle, a Brigham Young University professor of law who has written extensively on same-sex marriages. "Marriage is the highest, oldest public status we have, what Aristotle called the first area of legislation. Domestic partnership arrangements are where the battle is going to be played out."

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