Hermaphrodite Outlaws: Ambiguous Sex and the Civil Code in Nineteenth-Century France

by Anne E. Linton

The essay begins:

Nineteenth-century France was obsessed with the legal ramifications of hermaphrodism. Both medical and legal experts clamored to write on the subject. Entire treatises were dedicated to the particular implications of birth, adolescence, marriage, death, conscription, and inheritance for a hermaphrodite. Nearly every forensics textbook from the time offers a section on hermaphrodism, or at least addresses the questions raised by ambiguous sex in chapters on birth and divorce (or annulment, when divorce was illegal).Jurisconsults emphatically contradicted one another about rules applying to hermaphrodites, and the case record was inconsistent. Articles appeared in periodicals ranging from the popular press to specialized medical journals in surgery, psychology, gynecology, and even anthropology. Why did an issue that affected such a small percentage of the population suddenly become a zone of frenzied publication in nineteenth-century France?

Since no legal category existed at the time to describe individuals who were neither clearly female nor clearly male, hermaphrodites in France became “outlaws.” Contrary to the codes in other European nations that possessed laws governing marriage, divorce, or annulment in cases of doubtful sex, in France a unique legal situation coupled with historical pressures fueled social anxieties and stoked the debate about sexual ambiguity. The rigorous Napoleonic Code required that all infants be sexed dimorphically (labeled “male” or “female”) and registered formally within three days of birth. Marriage sanctioned only binary sex. The entire society had been predicated on a belief that both sexes were entitled to distinct rights and responsibilities. Yet the surprising story of hermaphrodism and the law is not that authors constantly acknowledged legal reality’s inability to account for natural reality; it is that they actually proposed that the laws be changed. Of course, their motivations were various. Some doctors called for stricter regulations to safeguard the faltering institution of marriage or to bolster oversight of initial sex declarations at birth in order to minimize later legal sex revisions. But there was also a vocal contingent advocating the addition of a third class of “neuter” citizens to the Civil Code, while still others claimed that “true sex” might be impossible to determine before death in certain individuals. To listen to their fervent prose, it becomes clear that what is at stake in these debates is the future not merely of a tiny fragment of the population but, rather, of the entire social structure and, equally important, of who would have the power to change it. Continue reading …

In this essay, Anne Linton shows how hermaphrodism became a zone of frenzied publication in nineteenth-century France, when numerous doctors recommended adding a “neuter sex” or a “doubtful sex” category to the Civil Code alongside those of “male” and “female.” Although attempts to add “doubtful sex” to the code were rarely intended to protect hermaphrodites, the legal silence regarding hermaphrodism actually afforded some doctors and patients the leeway to live in ways others wished could be outlawed.

ANNE E. LINTON is Assistant Professor of Nineteenth- and Twentieth-Century French at San Francisco State University. Her research interests span a wide range of interdisciplinary topics in nineteenth-century cultural studies, including science, medicine, and gender studies. She is currently putting the finishing touches on a book manuscript titled Prescribed Fictions: Representations of Hermaphrodism in Nineteenth-Century Literature and Medicine.