“A Man and a Woman.” Really?
By John Nguyet Erni (jerni@LN.edu.hk)
(John Nguyet Erni teaches cultural studies and human rights at Lingnan University, Hong Kong. This is a draft of a piece that is soon to be published in similar form in the bilingual HK publication 'Dim Sum')
The recent ruling in Hong Kong to deny the right of marriage of a post-operative transsexual woman (“W”), once again, stirs my curiosity about how and why the business of “a man and a woman” becomes the only permissible ground for marriage. The judge who delivered the ruling on W’s case worried that a favorable judgment to W would inadvertently give legal recognition to gay marriage. That is to say, he was concerned that, as far as the legal meaning of marriage is concerned, any personal business deviating from the (biological) designation of “a man and a woman” would defile it. You may ask: isn’t that little phrase the only natural and indisputable language that would appear in any marriage law or family law? Quite rationally, you may think: isn’t it the case that the reason why gay, lesbian, and transsexual people do not have the right to marry in the majority of places in the world today, is because the laws are written in such a way that “a man and a woman” would be the only condition that enjoys solid statutory protection? Well, think again!
The truth is, as a question of law, whether and how heterosexuality is a wholly recognizable, codified, and defensible statutory reality in marriage and sexuality-related legal judgments, remains an open question. We all know that in a legal environment, a statutory designation of a term or a phrase does two things: statutory confirmation would supply the term with argumentative authority, and it would also cause legal dismissal to other terms that are different or excluded by the endorsed term. The shocking irony is that the terms “heterosexual,” “heterosexuality,” or “a man and a woman” have not once appeared in any major doctrine in international public law. These terms are entirely absent from even the 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registraton of Marriages. Further, in the range of treaty articles that directly underwrite the legal sanctity of family, there exists not once a definitional correlation between family and heterosexuality. For example, Article 23 of the International Convention on Civil and Political Rights (ICCPR), states:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
Likewise, Article 10 of the International Convention on the Economic, Social, and Cultural Rights (ICESCR) states: “Marriage must be entered into with the free consent of the intending spouses.” In these two bedrock Conventions in international human rights law, neither the heterosexual composition of a family nor the heterosexual order of marriage has been given positively nominated legal recognition. In fact, in article 23.2 of the ICCPR seen above, the right of men and women to marry and form a family never says with absolute legal clarity that these parties would be doing so with each other. Instead, the onus of the “heterosexual proof” for the sanctity of family rests in the phrase “natural and fundamental,” therefore securing a religious meaning of marriage more than anything else.
Further, in women’s rights law, the designation of heterosexuality also similarly eluded the drafters. If you read the Preamble of the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), which states: “Bearing in mind the great contribution of women to the welfare of the family and to the development of society…,” you’ll find that the bringing together of “women” and “family” has not directly imputed either “men” or “heterosexuality” as the conjugal term. In addition, where the term “parents” appear in CEDAW and the Child Convention, there is no heterosexual designation for it.
Technicality matters a lot in law. Otherwise, the infamous move by the United States federal government to codify heterosexuality would never have been necessary. Through the Defense of Marriage Act (DOMA) in 1996, the Clinton administration lodged a formal definition of marriage as contractually enacted as a “legal union between one man and one woman as husband and wife.” Several years after DOMA, seeing the intensified advancement of gay and lesbian rights in various court decisions domestically and abroad, the Bush administration joined a coalition of twenty-five Christian organizations to proclaim the “Marriage Protection Week” in October 12-18, 2003. Since technicality does matter, we may say that other than DOMA and similar legislature in other countries, heterosexuality in law is by and large presumed heterosexuality. All claims of legitimacy and protection in the name of heterosexuality therefore rest upon implied validity and authority. Even laws that ban “perverse heterosexuality” (e.g. prohibition of polygamy, incest, prostitution, bestiality, and so on) have never explicitly foregrounded heterosexuals or what they do for fun.
What we need to remember about presumed heterosexuality is that its shadowy legal status still works to bring about legal discrimination against non-heterosexuals. But it does not do so by formally declaring homosexuals as the very class of people denied of protection. (In fact, like the term heterosexuality, the terms “homosexuals” and “homosexuality” have rarely been registered as distinctive legal entities). The bias of presumed heterosexuality often relies upon the formal designation of queer behavior and desires as legal entities. So, it is queerness, not queer identity as such, that has been identified in legal judgments. Bowers v. Hardwick (1986), the major backlash case against queer sexual rights and privacy rights in the U.S., demonstrates that naming “homosexual conduct” is a prerequisite for shoring up the presumed but all-powerful sanctity of heterosexuality. In the ruling, it is clear that the naming of homosexual conduct is far more important than defining who or what a “homosexual” is. In the long repealed criminal code in Hong Kong against gay sex, it was the terms “buggery” and “gross indecency” that were the designated offence. Nowhere in that code mentioned homosexual people.
I have given much attention to nomenclature because at a root level naming (or the absence of it) forms a part of rights thinking and claim-making. In the world of human rights, the notion of heterosexuality exists only in a shadowy manner, if at all. In fact, around the world, there has never been any visible or organized Movement for Heterosexual Rights. But in law, we may say that the universalism, the public visibility, and the majority rule of heterosexuality is technically speaking established not through the direct citation of heterosexuality as such, but through invoking other corollary forms of legal power: the family order, the religious order, the military order, and the moral sanctity of children. In this way, the heterosexual power underlying “a man and a woman” can only be prima facie legal.