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What is a "Real Man"? - February 25, 2003

There seems to be a great deal of debate over what constitutes a “real man”. During my grandfather’s era, a real man worked in a coal mine, smoked two packs a day and drank whiskey straight from the bottle. Needless to say, in those days, real men didn’t live real long.

Fortunately, the definition of a “real man” softened over time. In fact, by the 1980s, the only requirement of masculinity was to not eat quiche. Of course, by that definition, my wife and kids are also “real men” since our family diet consists solely of the items on the new $1 menu at McDonald’s.

Therefore, it’s obvious that we need a new definition of “manhood.” And interestingly, the courts are stepping in to fill this void.  On February 21st, a Florida judge awarded primary custody to Michael Kantaras, a man who was born a woman. In doing so, the judge ruled that Michael Kantaras is now a “man” in the eyes of the law.

In 1986, Margo Kantaras underwent gender reassignment and changed her name to Michael Kantaras. Three years later, Michael married his bride, Linda Kantaras. During the course of their marriage, Michael adopted Linda’s infant son and Linda had another child via artificial insemination. Unfortunately, the Kantaras’ did not live happily ever after. In 1998, Michael filed for divorce. The couple then became embroiled in a custody battle every bit as ugly as my mother-in-law (although not quite as mean or hairy).

In court filings, Linda claimed that her marriage to Michael was null and void. Therefore, Michael should not be granted any visitation rights.  Like most states, Florida does not allow same-sex marriages. Linda Kantaras claimed that her marriage to Michael was a same-sex union. As a result, Michael was never her husband and not the father of either child.

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Judge O’Brien disagreed. In fact, he ruled that Michael is a “man” and therefore, the marriage was valid under Florida law. In his opinion, he wrote, “Chromosomes are only one factor in the determination of sex and they do not overrule gender or self-identity which is the true test or identifying mark of sex.”

In my view, Judge O’Brien went much further in his decision than he needed to go. During the custody battle, Linda Kantaras attempted to turn the children against their father by referring to him as “he-she” and “it”. This probably predisposed the judge towards granting Michael primary custody. However, the judge didn’t have to address the issue of “What makes a man under the law?” to reach this result. He could have ruled for Michael under the legal doctrine of estoppel.

Estoppel prevents people from having their cake and eating it too. In the Kantaras case, Linda married Michael with full knowledge of his past. In marrying him, she benefited financially and otherwise. Therefore, she should have been estopped from claiming that her marriage was fraudulent when she knowingly participated in, and benefited from, the fraud.

However, instead of relying on this time-honored doctrine, Judge O’Brien ruled that gender was a choice. In essence, each of us gets to choose our gender for ourselves.  Now, as a libertarian, I believe in individual liberty. Therefore, if you want to believe that you are a chicken and attempt to lay eggs in a coop in your backyard, then I say, “Cock-a-doodle-do!”

However, the problem in this case is that we are basing legal rights on nothing more than a person’s decision as to their sex. This is not the way we handle things in the law.  For instance, at one time, many states embraced the concept of common law marriage. In these states, a couple would be treated as married if they held yourself out as husband and wife. In the event of a break-up or death, they would have rights similar to those of married persons.

However, this proved unworkable because it required a case-by-case analysis to determine whether the couple was married under the common law or just dating. As a result, most states banned common law marriages and now require you to get married officially if you want to be treated as a married couple.

I suspect we are going to have a similar problem with self-identifying gender. In the Kantaras case, it was clear that Michael had identified himself as a male for his entire life. Even still, it took the judge a year to write the 809-page opinion in this case.

In short, our judicial system could be brought to a grinding halt by litigants claiming that they should be allowed to join all-male or all-female clubs, shower in the other sex’s locker room or even be imprisoned with the opposite sex. This is particularly true if the judge in each case must examine the litigant’s entire life history to determine his or her true self-identity.

Therefore, we really should think long and hard about whether we are going to allow gender choice. And if so, then we must establish some system to officially register people as “men” or “women.”

Now, if you will excuse me, I need to shave my beard, do my make-up and slip into my powder blue cocktail dress. Ladies get in free at the local bar tonight!

If you enjoyed this article, then you will love Sean Carter's new book, If It Does Not Fit, Must You Acquit? -- Your Humorous Guide to the Law.  The book is not available in stores but may be purchased for $14.95 at Amazon.com or by clicking here.

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