Simply recognizing a third category does not assure a flexible gender system. Such flexibility requires political and social struggle. In discussing my ‘‘five sexes’’ proposal Suzanne Kessler drives home this point with great effect:
The limitation with Fausto-Sterling’s proposal is that legitimizing other sets of genitals. . . still gives genitals primary signifying status and ignores the fact that in the everyday world gender attributions are made without access to genital inspection. . . what has primacy in everyday life is the gender that is performed, regardless of the flesh’s configuration under the clothes.
Kessler argues that it would be better for intersexuals and their supporters to turn everyone’s focus away from genitals and to dispense with claims to a separate intersexual identity. Instead, she suggests, men and women would come in a wider assortment. Some women would have large clitorises or fused labia, while some men would have ‘‘small penises or misshapen scrota—phenotypes with no particular clinical or identity meaning.’’85 I think Kessler is right, and this is why I am no longer advocating using discrete categories such as herm, merm, and ferm, even tongue in cheek.
The intersexual or transgender person who presents a social gender— what Kessler calls ‘‘cultural genitals ‘‘—that conflicts with h/her physical genitals often risks h/her life. In a recent court case, a mother charged that her son, a transvestite, died because paramedics stopped treating him after discovering his male genitals. The jury awarded her $2.9 million in damages. While it is heartening that a jury found such behavior unacceptable, the case underscores the high risk of gender transgression.86 ‘‘Transgender warriors,’’ as Leslie Feinberg calls them, will continue to be in danger until we succeed in moving them onto the ‘‘acceptable’’ side of the imaginary line separating ‘‘normal, natural, holy’’ gender from the ‘‘abnormal, unnatural, sick [and] sinful.’’87
A person with ovaries, breasts, and a vagina, but whose ‘‘cultural genitals’’ are male also faces difficulties. In applying for a license or passport, for instance, one must indicate ‘‘M’’ or ‘‘F’’ in the gender box. Suppose such a person checks ‘‘F’’ on his or her license and then later uses the license for identification. The 1998 murder in Wyoming of homosexual Matthew Shepherd makes clear the possible dangers. A masculine-presenting female is in danger of violent attack if she does not ‘‘pass’’ as male. Similarly, she can get
into legal trouble if stopped for a traffic violation or passport control, as the legal authority can accuse her of deception—masquerading as a male for possibly illegal purposes. In the 1950s, when police raided lesbian bars, they demanded that women be wearing three items of women’s clothing in order to avoid arrest.88 As Feinberg notes, we have not moved very far beyond that moment.
Given the discrimination and violence faced by those whose cultural and physical genitals don’t match, legal protections are needed during the transition to a gender-diverse utopia. It would help to eliminate the ‘‘gender’’ category from licenses, passports, and the like. The transgender activist Leslie Feinberg writes: ‘‘Sex categories should be removed from all basic identification papers—from driver’s licenses to passports—and since the right of each person to define their own sex is so basic, it should be eliminated from birth certificates as well.’’89 Indeed, why are physical genitals necessary for identification? Surely attributes both more visible (such as height, build, and eye color) and less visible (fingerprints and DNA profiles) would be of greater use.
Transgender activists have written ‘‘An International Bill of Gender Rights’’ that includes (among ten gender rights) ‘‘the right to define gender identity, the right to control and change one’s own body, the right to sexual expression and the right to form committed, loving relationships and enter into marital contracts.’’90 The legal bases for such rights are being hammered out in the courts as I write, through the establishment of case law regarding sex discrimination and homosexual rights.91
Intersexuality, as we have seen, has long been at the center of debates over the connections among sex, gender, and legal and social status. A few years ago the Cornell University historian Mary Beth Norton sent me the transcripts of legal proceedings from the General Court of the Virginia Colony. In 1629, one Thomas Hall appeared in court claiming to be both a man and a woman. Because civil courts expected one’s dress to signify one’s sex, the examiner declared Thomas was a woman and ordered her to wear women’s clothing. Later, a second examiner overruled the first, declaring Hall a man who should, therefore, wear men’s clothing. In fact, Thomas Hall had been christened Thomasine and had worn women’s clothing until age twenty-two, when he joined the army. Afterward s/he returned to women’s clothing so that s/he could make a living sewing lace. The only references to Hall’s anatomy say that he had a man’s part as big as the top of his little finger, that he did not have the use of this part, and that—as Thomasine herself put it—she had ‘‘a peece of an hole.’’ Finally, the Virginia Court, accepting Thomas(ine)’s gender duality, ordered that ‘‘it shall be published that the said Hall is a man and a woman, that all inhabitants around may take notice thereof and that he shall go clothed in man’s apparel, only his head will be attired in a Coiffe with an apron before him.’’92
Today the legal status of operated intersexuals remains uncertain.93 Over the years the rights of royal succession, differential treatment by social security or insurance laws, gendered labor laws, and voting limitations would all have been at stake in declaring an intersex legally male or female. Despite the lessening of such concerns, the State remains deeply interested in regulating marriage and the family. Consider the Australian case of an XX intersex born with an ovary and fallopian tube on the right side, a small penis, and a left testicle. Reared as a male, he sought surgery in adulthood to masculinize his penis and deal with his developed breasts. The physicians in charge of his case agreed he should remain a male, since this was his psychosexual orientation. He later married, but the Australian courts annulled the union. The ruling held that in a legal system that requires a person to be either one or the other, for the purpose of marriage, he could be neither male nor female (hence the need for the right to marry in the Bill of Gender Rights).94
As usual, the debates over intersexuality are inextricable from those over homosexuality; we cannot consider the challenges one poses to our gender system without considering the parallel challenge posed by the other. In considering the potential marriage of an intersexual, the legal and medical rules often focus on the question of homosexual marriage. In the case of Corbett v. Corbett 1970, April Ashley, a British transsexual, married one Mr. Corbett, who later asked the court to annul the marriage because April was really a man. April argued that she was a social female and thus eligible for marriage. The judge, however, ruled that the operation was pure artifact, imposed on a clearly male body. Not only had April Ashley been born a male, but her transforming surgery had not created a vagina large enough to permit penile penetration. Furthermore, sexual intercourse was ‘‘the institution on which the family is built, and in which the capacity for natural hetero-sexual intercourse is an essential element.’’ ‘‘Marriage,’’ the judge continued, ‘‘is a relationship which depends upon sex and not gender.’’95
An earlier British case had annulled a marriage between a man and a woman born without a vagina. The husband testified that he could not penetrate more than two inches into his wife’s artificial vagina. Furthermore, he claimed even that channel was artificial, not the biological one due him as a true husband. The divorce commissioner agreed, citing a much earlier case in which the judge ruled, ‘‘I am of the opinion that no man ought to be reduced to this state of quasi-natural connexion.’’96
Both British judges declared marriage without the ability for vaginal — penile sex to be illegal, one even adding the criterion that two inches did not a penetration make. In other countries—and even in the several U. S. states that ban anal and oral contact between both same-sex and opposite-sex partners and those that restrict the ban to homosexual encounters97—engaging in certain types of sexual encounters can result in felony charges. Similarly, a Dutch physician discussed several cases of XX intersexuals, raised as males, who married females. Defining them as biological females (based on their two X chromosomes and ovaries), the physician called for a discussion of the legality of the marriages. Should they be dissolved ‘‘notwithstanding the fact that they are happy ones?’’ Should they ‘‘be recognized legally and ecclesiastically?’’98
If cultural genitals counted for more than physical genitals, many of the dilemmas just described could be easily resolved. Since the mid-1960s the International Olympic Committee has demanded that all female athletes submit to a chromosome or DNA test, even though some scientists urge the elimination of sex testing.99 Whether we are deciding who may compete in the women’s high jump or whether we should record sex on a newborn’s birth certificate, the judgment derives primarily from social conventions. Legally, the interest of the state in maintaining a two-gender system focuses on questions of marriage, family structure, and sexual practices. But the time is drawing near when even these state concerns will seem arcane to us.100 Laws regulating consensual sexual behavior between adults had religious and moral origins. In the United States, atleast, we are supposed to experience complete separation of church and state. As our legal system becomes further secularized (as I believe it will), it seems only a matter of time before the last laws regulating consensual bedroom behavior will become unconstitutional.101 At that moment the final legal barriers to the emergence of a wide range of gender expression will disappear.
The court of the Virginia Colony required Thomas/Thomasine to signal h/her physical genitals by wearing a dual set of cultural genitals. N ow, as then, physical genitals form a poor basis for deciding the rights and privileges of citizenship. Not only are they confusing; they are not even publicly visible. Rather, it is social gender that we see and read. In the future, hearing a birth announced as ‘‘boy’’ or ‘‘girl’’ might enable new parents to envision for their child an expanded range of possibilities, especially if their baby were among the few with unusual genitals. Perhaps we will come to view such children as especially blessed or lucky. It is not so far-fetched to think that some can become the most desirable of all possible mates, able to pleasure their partners in a variety of ways. One study of men with unusually small penises, for example, found them to be ‘‘characterized by an experimental attitude to positions and methods.’’ Many of these men attributed ‘‘partner sexual satisfaction and the stability of their relationships to their need to make extra effort including non-penetrating techniques.’’102
My vision is utopian, but I believe in its possibility. All of the elements needed to make it come true already exist, at least in embryonic form. Necessary legal reforms are in reach, spurred forward by what one might call the ‘‘gender lobby’’: political organizations that work for women’s rights, gay rights, and the rights of transgendered people. Medical practice has begun to change as a result of pressure from intersexual patients and their supporters. Public discussion about gender and homosexuality continues unabated with a general trend toward greater tolerance for gender multiplicity and ambiguity. The road will be bumpy, but the possibility of a more diverse and equitable future is ours if we choose to make it happen.