We all have half-baked research projects that we imagine that we’ll turn our full attention to some day but, in the meantime, they simply provide background mental chatter as we read through the events of the day. One such (very much) half-baked project of mine is thinking through the implications of legislative efforts to define some of the basic units of biological and, also, family life. I’ve been interested in this in the context of ‘marriage’—and, in particular, the pluralistic legislative conceptions of marriage that circulate globally and also domestically—but I’ve also been interested in efforts by different U.S. states to legislatively define ‘life.’ It’s seemed to me that—aside from the interesting possibility created by different states’ conception of life that something/one may be ‘dead’ in one U.S. state but ‘alive’ in another—that these legislative efforts open the door to defining ‘life’ not just at conception, but also at, say, 50 weeks. (Is this where ‘pro-life’ advocates really want to go?)
This is all a way of setting the stage for something I’ve noticed in the backdrop to conversations over the Defense of Marriage Act’s definition of marriage for the federal government, embodied in Section 3 of that Act (“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”): Noticeably, this Section 3 definition leaves ‘man’ and ‘woman’ undefined.
Could, then, President Obama issue an executive order defining ‘man’ and ‘woman,' for federal purposes, as completely contingent on a person’s self-declaration? In other words, couldn’t one get around DOMA’s imposition of opposite-sex marriage by allowing individuals to identify, for federal purposes, as whatever gender they wanted? Thus, Alice and Betty could be in a F-F same-sex marriage in a given state, but Alice could elect to be a ‘M’ for federal purposes, thereby positioning her and Betty as in a M-F opposite-sex marriage in the federal government’s eyes?
This brings me to Pakistan, where self-declarations of gender are the (new) law, as I also understand the case to now be in Argentina. My comparative work has largely been in India, where I’ve focused on non-state Islamic legal institutions and their implications for ideas like ‘the rule of law’ and other liberal values. But before I started work in India, I was working in Pakistan, and lately I’ve returned to doing work there, focused on a burgeoning movement for ‘transgender’ rights that a 2009 Supreme Court of Pakistan case instigated. One interesting result of this case, which I have yet to fully explore, is that Pakistan now recognizes 4 (or maybe 5, depending on who you talk to) different official genders, with gender contingent not on birth certificates (largely non-existent in Pakistan) nor medical tests but on self-declaration. This is all new, so much remains to be worked out, but Pakistan’s example does open up a whole brave new world with respect to gender, family, and perhaps even ‘life’ itself.