A History of Gender Variance in Pre-20th Century Anglo-American Law

I. IntroductionChristie is medically termed a transsexual, a term not often heard on the streets of Texas, nor in its courtrooms. If we look at other states or even other countries to see how they treat of transsexuals, we get little help.Currently in America, of the hotter political topics is the issue of marriage.Should it be allowed?2Should it be banned completely?3Should there be a compromise such as the state of Vermont devised in 2000?4Whatever is eventually decided, either state-by-state or at the national level, a point of no return was reached on May 17, 2004, when the 180-day stay period of the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Department of Health5 expired and the first legal in the United States occurred-at least, the first unquestionably legal6 same-sex marriages not involving at least individual whose legal sex status has had to be ruled upon.7Although the current political discourse regarding seeks to set out limitations as to what can constitute a legally recognized familial relationship (hetero-limited or gay-inclusive as well), in almost all proposals which seek to limit via definition to unions between one and woman, critical element is almost always left out: the definitions of and woman. As Mary Beth Norton has observed, Persons of indeterminate sex . . . pose perplexing questions for any society.8 And, whether anyone on either side of the religio-political battle is willing to admit so or not, a substantial number of human beings fall outside of the vagina + XX chromosomes = woman / penis + XY chromosomes = man dichotomy-a dichotomy that is perhaps even more false than it is popular.Perhaps because of this definitional vacuum (or perhaps for other reasons) such persons are all but absent from discourse, even though twenty-first century society is not the first to face such questions and even though, prior to legal actually taking place in North America (whether in Canada, San Francisco, or Massachusetts), the only people who have had any legitimately presumedto-be-preexisting rights extinguished by the fraudulently named defense of marriage acts have been transsexuals9-people who, if the legislative histories of such acts are to be viewed as having any credibility whatsoever, cannot rationally be viewed as having been targets of such legislation.10 Contrary to both the far left11 and the far right,12 gender ambiguity and gender variance are nothing new. And, the law's recognition that there are persons who fall outside the concreteness of the male-female dichotomy is nothing new.13Although now the issue almost always comes up in cases involving the validity of a marriage14 (or the ability to enter into a valid marriage15), the further back goes into legal history, the more varied the situations get.16 This article will look at issues of gender variance and legal parameters of sex designation in Anglo-American law up through the end of the nineteenth century. Almost by necessity, however, other elements of the development of this area of the law will be addressed as well-most notably the early treatises such as Bracton and Coke Upon Littleton, which made specific, albeit limited, mention of the legal status of hermaphrodites.17 The focus here will be on three cases, only of which involved a marriage, and only two of which actually involve individuals who likely would (or even might) qualify either as hermaphrodites as the word was understood in the English common law or as intersexed (or even transsexual) in today's medico-legal understandings. Two of the cases are from England, but is from early colonial Virginia.While being able to draw a number of conclusions from these cases (that would be of benefit not just to modern historians but also to practitioners and jurists) would be self-evidently desirable, doing so beyond the mere act of bringing them to the attention of modern legal practitioners likely would be difficult. …

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