This semester I am teaching two seminars, one
on Legal Issues of the 21st Century and one
on Legal Systems Very Different From Ours. Two days ago they collided.
The topic for the day in the legal issues seminar was human reproductive technology; one of the issues that came up was gender ambiguity. It is convenient to think of all human beings as either male or female, and it is a pretty good approximation, but no more than pretty good, for reasons some of which have only been discovered recently. Some humans are neither XX nor XY and so, genetically speaking, neither male nor female. Some humans are genotypically male but phenotypically female, or vice versa, presumably due to something going wrong in utero. Some humans are, judging by their own accounts, genetically and morphologically of one gender but psychologically of the other—and modern medicine makes it possible for them to surgically correct the error, although imperfectly. Finally, it has been known since antiquity that some humans are hermaphrodites (the politically correct term seems now to be "intersex," although it covers a wider range of conditions), possessing both male and female sexual organs.
All of which raise potentially interesting problems for legal rules, norms, cultural patterns that are based on the simple binary categories—a subject covered in an interesting paper
by one of my students a few years back. So far as I know—readers are welcome to correct me if I am mistaken—these issues were ignored in traditional Anglo-American law.
They were and are, however, treated in some detail in traditional Jewish law—one of the systems covered in my other seminar. That legal system recognized two categories other than male and female. One consisted of hermaphrodites. The other was labelled "tumtum" and seems to have been a condition in which the genitals were somehow concealed—at least, the discussions assumed the possibility that surgery might reveal whether a tumtum was actually male or female.
Under Jewish law, the religious obligations of men and women are different. That raised an obvious question—what were the obligations of someone in one of the other categories? One answer given by some sages was that, since such a person might be either male or female, he/she/it was obliged to do anything required by religious law of either a male or a female—just to play safe. Others apparently felt that ambiguous cases should be considered male. Doing a little last minute research to see how the ancient law dealt with the modern problem, I came across a web page
discussing various opinions, ancient and modern, on the application of Jewish law to individuals of ambiguous gender—pretty obviously written by and for people to whom it was still a live issue in a living legal system.