Abstract
Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.
Highlights
In the early modern period, being male or female was a fundamental legal status
As Wahrman (2004) and Mak (2013) have expounded, gender transitioned from a presentation to an identity—a constant and innate expression of the self. During this exciting moment in early modern Anglo-American history, sex was transforming from a legal to a scientific fact
Because the common law rule did not dictate a hierarchy among different sources of knowledge in the process of sex classification, the reasoning process was left in the hands of judicial fact finders, who
Summary
Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue How was this legal fact established in cases of doubt? This article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions
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