Examples of why legislating sex/gender is a bad idea

The chapter opens with an 1881 French annulment petition involving a wealthy 22 year-old woman and a younger non-wealthy aristocrat. The case—which involved “doubtful sex” was covered in detail in the French press and even made it to the New York Times under the headline “Queer French Lawsuit.” [See side-note below.] (Note that both parties were Spanish, though the court case was in France.) The arrangement was planned as a double wedding, Mercedes de Campo to the young (less than 18-year-old) Count San Antonio, and San Antonio’s sister to Mercedes’ brother. Mercedes was reluctant, but was pressured into it by the families. Mercedes’ marriage was not a success and her husband eventually admitted that it would never be consummated. After initial attempts to keep things quiet, Mercedes sued for annulment on the basis that her husband was not a man—that his gender could not be determined. The case never came to court as the French court determined it had no jurisdiction over Spanish citizens, leaving the question of San Antonio’s sex undetermined. Despite this, the theoretical questions behind the case were argued in detail in the media and medical journals.

[Side-note: This headline illustrates some of the problems with determining when the word “queer” first became associated with variant sexuality or gender. Since such variation was invariably considered “curious and strange”—one of the pre-existing senses of “queer”—the word might be used without intending any special sub-sense. I wouldn’t want to suggest that the use of “queer” here was meant as a sort of dog-whistle, but neither would I rule out the possibility that it was in the process of acquiring that function at this date. I once ran across a mid-19th century description of sculptor Harriet Hosmer that described her as “queer” in the specific context of her gender transgression, but alas I’ve lost track of the quote and haven’t been able to track it down again.]

As noted previously, the visibility of intersex people was increasing due to the rise of public hospitals and new medical specialties, as well as the legal requirements for registering the sex of infants. French law had no place for anyone not clearly categorized as male or female. Marriage was predicated on the presumption of reproduction. And various sociopolitical forces increased anxiety about a falling birth rate.

Various persons proposed addressing the problem of “doubtful sex” by changing the laws, but this was not necessarily out of sympathy for the uncategorized people. Reasons might include “to safeguard marriage” or to avoid the chaos of legal changes of sex category in adulthood. Non-binary people threatened the legal structure of French society, and changes were demanded to mitigate the situation, even if it required the creation of a third legal sex category. One advocate cited the “horror” of being required to change legal sex later in life, complete with the resulting consequences for gender performance, social life, and economic options.

[Note: Of course, the option of not tying gender performance and legal rights to opportunities to one’s sex category wasn’t considered—and is still debated today.]

Medical manuals provided detailed guidance for determining a newborn’s sex, but these were being demonstrated to be inadequate in a minority of cases. Further, in some cases “erroneous” categorization was not identified until puberty or when discovered due to an unrelated medical procedure. Some were not identified until after death and only by the chance of there being an autopsy.

The professional concerns were not a matter of abstract correctness of category. One author wrote luridly of the fear of “deformed, incomplete men…hidden, disguised under women’s clothing…taking advantage of their sterility in order to surrender themselves to libertinage, to prostitution, and to the most audacious depravation.” [Note: Sound familiar? Depraved men disguised as women?]

And, of course, the increase of interest into cases of doubtful sex was self perpetuating as doctors rushed to publish case studies.

As early as the late 1890s, doctors had begun to advocate for a legal third category of “doubtful sex”—if only to make their job of sex categorization easier. What this would mean for a child’s upbringing wasn’t always addressed, but the proposals included re-examination at puberty or before marriage. Another proposal was to simply erase non-binary people from the legal landscape, removing the privileges and rights associated with either male or female, forbidding marriage and inheritance. [Note: The wording suggests that this was aimed primarily at removing any rights association with male status.]

One author of the time noted that Germany and Austria allowed for a classification of “doubtful sex” which could be revisited later. The debate continued into the early 20th century, when some pointed out the negative implications for non-binary people of creating an official category. It could single them out for mockery without creating a social context for their lives. The consequences of this concern included a policy of doubling down on the need for strict binary assignment and, if considered necessary, infant surgery to align the child’s body with the assigned sex. Other others argued that, by not assigning people to a “third sex” they were free to pursue sex reassignment or not, as they chose. There was quite a mixture of prioritizing civil concerns versus patient concerns on both sides of the third category debate.

The book returns to the context for France being a flashpoint for intersex concerns. Other countries often had legal contexts for addressing intersex persons, but the Napoleonic code (implemented 1804) not only declined to recognize non-binary sex as existing, but removed impotence and genital variation as legal grounds for divorce. This had consequences for couples when intersexuality was not identified as an issue until after marriage. Previously, when impotence was grounds for annulment, many of the physical consequences of intersexuality would allow for a separation (if desired and raised by the couple). Similarly, apparently female physiology that didn’t allow for penetration could also be grounds. This was the situation that still held in Germany and England, for example. But under the new laws in France, the only way to dissolve a marriage in the case of an intersex partner was to claim that their sex had been incorrectly assigned previously.

When questions of doubtful sex came into the courtroom we can see the types of concerns and evidence brought to bear. (The book cites the case of Anne Grandjean, although the question of intersexuality in that case isn’t at all obvious. See my discussion of the relevant documents: https://alpennia.com/lhmp/publication/6335) despite 19th century French law being silent on the topic of non-binary status, some argued that it could be used as grounds for divorce under other clauses in the law.

A detailed court history is given of a couple where, after two years of marriage, the husband petitioned for annulment on the grounds that his wife lacked the necessary female organs to be considered a woman. The wife resisted this framing and refused the court mandated midwife’s examination. She brought her own physician’s testimony that she had “some” female organs, although her vagina was imperforate. A number of other doctors provided “expert” testimony, despite having never examined the defendant. There is an extensive presentation of their arguments, based entirely on their various personal pet theories, and contradictory both in terms of what was prioritized as evidence and their eventual conclusions. In some cases, it’s clear that the witnesses had already decided that the marriage should be annulled and constructed their arguments toward this end. In the end, the court ruled against the defendant based on this highly convoluted reasoning, compounded by her continuing refusal to submit to a medical examination. Across the course of the testimony, she had been declared to be a malformed woman, a malformed man, and a person with no sex at all.

The key arguments were presented by Dr. Tardieu (discussed earlier), but by the end of his life his theories were being dismantled in several areas, partly on the basis of being contradicted by the observable data. (There is a brief discussion of how these legal issues continued to play out across the 20th century.)

One aspect of the legal situation was a rising concern over the possibility of unidentified “same-sex” marriages. If all people had a “true sex” but that sex could not necessarily be determined based on apparent anatomy, then there might be all manner of marriages that actually involved people of the same sex, where the matter had not been brought to light. While some viewed this as an existential crisis, especially in the context of falling birth rates, others felt there was no need to prevent non-binary people from marrying or to annul such marriages, if the couple didn’t desire it. Some doctors recorded conclusions regarding “true sex”—and even operations to address anomalies—related to patients they had concluded were in “same-sex” marriages without feeling any obligation to inform the authorities or act further on the matter. (Or even, in some cases, to inform the patient of their conclusions.) In such cases, their records might mention the happiness of the marriage as a significant factor.

The opinions and attitudes of physicians had an enormous power over the outcome of such consultations. Rarely we see a record of a patient rejecting the result and going for a second opinion. In cases where an original sex category became obviously in error later, the support of a doctor’s testimony was essential if the person wanted an official reclassification. While in other cases, a doctor’s testimony could override the patient’s desires and completely overturn their life, as in the case of Barbin.