Recognizing new social forces working against the “correction” of intersexed children at birth, this article explores the undefined position of the sometimes invisible segment of the population that is intersexed. In examining the similarities between the legal position of mulattoes in the Antebellum south with that of the intersex today, the article takes on the very definition of sex in contemporary society. The author argues that sex, like race, is not binary, but rather constructed so as to reinforce heteronormative patriarchal norms. Through an examination of case law concerning transsexuals, the author demonstrates the ways in which law erroneous relies on a sexual binary, and goes on to provide a guide for understanding how courts would locate intersexuals in contemporary society.
…”This case involves the most basic of questions. When is a man a man, and when is a woman a woman? Every schoolchild, even of tender years, is confident he or she can tell the difference, especially if the person is wearing no clothes.” (1) With this opening statement, Judge Harberger, writing the majority opinion in Littleton v. Prange, quickly goes on to demonstrate that this most basic of questions can be more difficult to answer than appears at first glance. The case at issue, which required the court to determine the legal sex of a post-operative transsexual, questioned the basic notion that male and female are fixed, immutable, and oppositional categories. The very premise of the case is an assault on the foundational assumption that sex is a binary and biological phenomenon, which has been overwhelming accepted in contemporary thought. Importantly, these two concepts once underpinned race theory, but were subsequently rejected by both the academic and legal worlds. (2) The same, while examined and critiqued at length in feminist and sexuality theory, (3) has thus far failed to occur in the realm of legal doctrine and social consciousness.
This Article seeks to add to the scholarship that illustrates the way in which sex can be conceptualized in much the same way as race, and may thus be divested of the presumptions of dichotomy and physiology, by comparing the regulation of race in the antebellum period (4) and sex in the modern day. In doing so, it also aims to undermine objections that sex and race are not in fact parallel socio-physiological categories. (5) Specifically, this Article examines the manner in which antebellum mulattoes, whose mixed race challenged the bases for racial hierarchy, were socially and legally made black so as to be folded within the binary on which slavery depended. It then follows this analysis with a consideration of the ways in which the intersex, who are persons with ambiguously sexed genitals, chromosomes, or phenotypes, are physically forced into one sex or the other so as not to cast doubt on the sexual binary necessary to sustain a patriarchal political and social system. Using this comparison as a framework from which to extend its deconstruction of social categories, this Article then turns to an examination of the role of the law in regulating sexual identity, noting how the law has the potential to be used to create sex in much the same way as it was employed to craft race during the antebellum period.
The importance of this analogy is evident in the implications that flow from it. If sex is as much a construction as is race, the laws and statutes which rely on sexual demarcations, such as whether an individual is protected by Title VII, what penal laws may be applied to a person, in which athletic competitions an individual is permitted to participate, whether a person is subject to a military draft, and who an individual may marry, among others, lose their foundational support, as the premises on which they rely do not exist. (6) The social impact is potentially much greater, as the law is but a shallow reflection of the deep sex-based differences on which society is based. Whether a legal recognition that sex is a construction will have a substantial effect on social norms is unclear, though the possibility does exist. (7) With these ideas in mind, Part I of this Article begins by focusing on race in the American antebellum South, detailing both the cultural factors that resulted in mulattoes joining the disfavored racial category and the legal means by which a binary racial hierarchy was established. This section discusses the attempts at combating miscegenation, as well as the regulations that delineated blackness and established mulattoes’ place as blacks in terms of status, condition, and physicality. In Part II, the analysis turns to theoretical perspectives on sex as a social creation so as to provide a framework from which to develop a better understanding of the ways in which the intersex, as the physical intermediaries between the two established sexes, violate the political and social order. Part III examines the social and legal position of intersex individuals in contemporary American society, drawing attention to the parallels and divergences between the legal status of the intersex today and mulattoes of the antebellum world. It then highlights the ways in which this serves to undermine the basis for different judicial standards of review for race and sex based discrimination. Part IV concludes the Article, evaluating the likelihood for potential change in the law’s treatment of sex as a biological phenomenon.
I. SOCIAL AND LEGAL REGULATION OF MULATTOES IN THE ANTEBELLUM SOUTH
The constructed nature of race is clearly illustrated by the social perspectives on and the legal regulation of miscegenation in the antebellum South. Interracial sexual relationships, while accepted as standard in some parts of the South during the colonial era, were by the antebellum period uniformly perceived as extremely dangerous to white supremacy. This was due in large part to the mulatto offspring they produced, as mixed-race children blurred the line between the races, thereby upsetting the clear racial hierarchy on which slavery depended. Slavery was defended on the notion that racial stratification was part of a natural order, one in which whites dominated blacks due to their superior physical, mental, and behavioral traits. (8) Racial dilution not only led to a deterioration of these attributes, but also demonstrated immorality and cultural degeneracy. (9) Mulattoes, as evidence of interracial sex, were also “a visible reproach to the white man’s failure to live up to basic moral and social precepts.” (10) Consequently, hybridism was described as “heinous,” and mulattoes became a “spurious” issue requiring legal regulation. (11)
Mulattoes threatened a vision of the natural order as being one of clear, defined categories to one of gradations, a theory upon which the institution of slavery could not stand, as “[s]lavery rest[ed] on the fundamental distinction between human labor and those who own[ed] it, and the total relations between master and slave generate[d] the idea that all relationships … should [have] be[en] total.” (12) Plantation economies required whites to control the labor force in its entirety, a proposition that would have been impossible were it not for the strict bounds of the racial hierarchy. By relegating mulattoes to the status of their pure black contemporaries, the sharpness of racial distinctions would be maintained, and the power relationships that relied on racial purity could be sustained. (13) Such a clear racial divide also provided Southern lawmakers with a means of preventing interracial alliances between white servants and blacks, as giving value to whiteness granted the servant class privileges that they would seek to preserve. (14) Consequently, the white underclass would identify its interests as protected by racial division, as opposed to developing a class-based ideology, which could have undermined the system on which the Southern economy was based.
Given the threats they produced, interracial sexual liaisons had to be deterred and the mixed-race progeny regulated so as not to disturb the political and economic systems that fostered white privilege. Before turning to the legal measures adopted to accomplish these goals, however, it is first instructive to examine the ways in which colonial attitudes on amalgamation formed and developed, as such information will assist in understanding the timing and purpose of the legal regulations.
A. Social Perspectives of Mulattoes in the Colonial Era
The colonial South was not unified in terms of racial divides, attitudes, and mixing, but rather was a bifurcated region with respect to the status of blacks and mulattoes. (15) The upper South, comprised of Delaware, Virginia, Maryland, Kentucky, Tennessee, North Carolina, Missouri, and the District of Columbia, contained a relatively large mulatto population. (16) Often the offspring of white indentured servants and both free and enslaved blacks, a considerable portion were free, but overwhelmingly impoverished. (17) The economically depressed circumstances into which they were born, along with the low status of their parents and their residence in rural, rather than urban, areas, guaranteed mulattoes a place in the social underclass. Mulattoes did tend to rank in the upper echelons of free black society, but this did not alter the ways in which white citizens viewed mixed-race persons. (18) Indeed, whites equated mulattoes with blacks, making few distinctions as to hue or ancestry amongst persons of color. Mulattoes were thus just as socially, economically, and legally marginalized as their fully black brethren.
The lower South, consisting of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas, (19) had a contrastingly generous view of free mulattoes, and afforded these individuals a status superior to that of blacks, thereby creating a third, intermediate class between black and white. (20) The impetus for this was based on practical as well as cultural influences, many of which were linked to the settlement pattern that emerged in the lower South. Unlike the upper South, many early immigrants to the lower South were from the West Indies, where the pattern of race relations resulted in a multi-tiered racial hierarchy, with mulattoes serving as a variable intermediate class. (21) Further, settlement in the lower South was characterized by a small number of white plantation owners and overseers and a large population of black slaves. (22) The scarcity of white women encouraged amalgamation, both because it increased a sense of sexual license and because it prevented settlers from reestablishing European patterns of domestic life, with its ideal of a monogamous heterosexual couple at its center. (23) Consequently, mulatto children were often the progeny of prosperous fathers and slave women. (24) While the plantation economy discouraged fathers from manumitting their mixed-race children, those who were granted freedom joined the upper strata of society, due in large part to the recognition and largess of their white fathers. (25) The topmost few lived nearly on par with their white neighbors, and mulattoes as a whole dominated the free black community. (26) Avoiding interaction with unmixed blacks, many mulattoes adopted the attitudes of whites toward the lower castes, and took advantage of the social and economic opportunities that their lighter skin afforded. (27) These privileges provided incentives for free mulattoes to support the status quo in the lower South, and thus for mulattoes to ally themselves with the white dominating class. With a high ratio of blacks to whites in the plantation communities of the lower South, whites valued the buffer that the intermediate mulatto category provided. (28)
The three-tier class structure of the lower South disintegrated in the face of increased anxiety and tension due to abolitionist attacks on slavery. (29) Whites were fueled to defend the institution, a difficult endeavor when the line drawn between the two races, a line supposedly signifying a natural distinction between ruler and ruled, (30) was blurred by a significant mulatto population. A movement for society to be divided into two groups, black and white, gained momentum, and the white population of the lower South became less tolerant of miscegenation and the preferential treatment of mulattoes. (31) The potential for insurrection also served to lessen whites’ support for a free class of blacks, regardless of the hue of the individuals at issue. (32) As a result, by the antebellum period, the lower South had become a two-class society like its Northern counterpart.
B. Legal Regulation
While the attitudes concerning mixed-race individuals originally differed in the colonial South, by the antebellum period all of the states had imposed stringent regulations on miscegenation and had relegated mulattoes to the same status as “pure” blacks. These statutes addressed interracial marriage and fornication, so as to deter the production of mulatto children, and also worked to disarm the potential power of a mixed-race class by legislating blackness onto mulattoes.
1. Marriage and Fornication
In order to protect its economic system, as well as the social and political institutions that accompanied slavery, Southern lawmakers attempted to eradicate interracial liaisons by imposing legal sanctions on interracial marriage and fornication. In the early seventeenth century, Virginia began lashing out at miscegenation, declaring sexual intercourse with blacks to be equivalent to bestiality. (33) Courts imposed severe punishments on those found guilty of this trespass; in 1630, Virginian Hugh Davis “was sentenced ‘to be soundly whipped, before an assembly of Negroes and others for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a Negro, which fault he is to acknowledge next Sabbath day.”‘ (34) The penalties became less corporeal in subsequent years, and in 1662, the legislature mandated that “‘if any christian shall commit fornication with a negro man or woman, hee or shee soe offending shall pay double'” the previously imposed fine. (35) This provision, while reducing the punishment from physical to fiscal, was nevertheless important because it was a marked change from the colony’s precedent, which punished all violators, regardless of the sexual makeup of the fornicating couple, equally. (36)
Other colonies imposed even more stringent consequences on the participants of interracial relationships. South Carolina, a colony originally known for its widespread acceptance of interracial unions, punished interracial bastardy by binding out white men and women and free black men as indentured servants for seven years; the child of any such union was forced to serve until adulthood. (37) Maryland’s 1664 anti-miscegenation law provided punishments similar to those imposed in South Carolina. White women who married male slaves were compelled to serve their husbands’ masters for the lifetimes of their husbands, and any children born to the couple were required to labor for the parish for thirty-one years. (38) In 1692, the Maryland Assembly amended the statute by requiring free blacks who married white women to be forced into a lifetime of bondage. (39) Pennsylvania had the same provision, and also permitted courts to impose a sentence of seven years in bondage to all free persons convicted of interracial fornication. (40) Virginia diverged from its contemporaries by choosing banishment from the colony as its foremost penalty for interracial marriage. In 1691, Virginia passed a law prohibiting marriage between blacks and whites, “ordering that any white person marrying a black person be ‘banished and removed from this dominion forever.”‘ (41) This punishment was changed to six months in jail in 1705; the same edict also imposed a fine of up to 10,000 pounds of tobacco against the minister performing the ceremony. (42 Virginia did not punish the black members of the union, presumably because most blacks were slaves, and thus any penalties against these individuals would have deprived masters of their slaves’ labor. (43)
By the time of the Civil War, twenty-one out of thirty-four states had some sort of legislation proscribing and punishing interracial sexual relationships. (44) While these laws diverged in identifying the violators, the specific proscribed offenses, and the punishments meted out for violations, the provisions generally tended to target white female offenders. (45) Indeed, the Maryland legislature, abhorrent of white women’s sexual exploits with black men, described marriages between white women and black men as “always to the Satisfaccon of theire Lascivious & Lustfull desires, & to the disgrace not only of the English butt also of many other Christian Nations.” (46) Virginia, similarly concerned, enacted a bill aimed at addressing miscegenation that provided for banishment within three months of the mixed child’s birth. However, it further declared that any white woman “who gave birth to ‘a bastard child by any Negro or mulatto’ would be heavily fined or subject to five years of servitude and that the child would be bound into servitude until it reached age thirty.” (47) While this regulation may have been enacted due to a concern over the number of mixed-race children born to white women, there were other reasons for colonialists to target white women’s sexuality and regulate it heavily. (48) Bastard children were a problem regardless of color, as the community was then pressured to provide for those children. (49) Furthermore, given the demographic realities of the time, with white men outnumbering white women well into the 1750s, providing disincentives for interracial relationships encouraged intra-racial procreation, thereby ensuring the perpetuation of a racially pure, white dominating class. Also important were the negative perceptions of white female morality, in that white women were seen as being of frail moral character; this was linked to the desire to maintain a paternalistic social order. Finally, this regulation was a way of addressing the fact that mulatto progeny blurred the lines of freedom. “Since the law defined freedom according to the status of mothers, it became imperative for white men to specifically delineate severe punishments for those white women who crossed the sexual color line.” (50)
Importantly, the fact that the mother’s status of slave or free determined whether or not the child would be enslaved was a marked shift from the English common law, whereby children followed the status of the father. (51) However, due to the large numbers of mixed race children born to slave mothers and white fathers, colonies enacted statutes mandating a “status of the mother” rule. As Charles Robinson notes, “most interracial sexual relations involved intercourse between white masters and slave women…. Colonial authorities had real concerns that English common law might in fact undermine the institution of slavery by allowing biracial children to claim freedom on the basis of their paternal heritage.” (52) Under such circumstances, there would have been a large free mulatto population, which could have shifted the balance of power away from the white ruling class. This legal rule thus emerged so as to prevent mulatto freedom, and did not derive from a “natural” identity. In short, social needs trumped what were considered biological realities under the law.
Forcing mulatto children into servitude had the desired effect of propelling mixed race persons as close to slave status as possible:
By the time these men and women reached their freedom, they often…
