Friday, March 02, 2012

Colliding Seminars

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.


Hernan Coronel said...

From what i've seen in discovery and in other documentaries it is possible at least in some countries for the person to assume other identity and thus assume the legal responsibilities of the other gender. I guess that will work for two cases leaving out hermaphrodites, which could be solved by allowing them to choose a side.

jimbino said...

I wonder what would be the consequences in the US of a constitutional amendment that prohibited recognition of sex of a person in any law of the land. We already have race-neutral laws, why not sex-neutral ones?

We're not trying to run a Jewish Theocracy here, after all.

agriculture investment said...

Absolutely fascinating. The things one can learn from scrolling through blogs at night. I wonder how different societies look at laws related to sex changes.

SheetWise said...

I understand the states interest in lineage and identity -- but I don't understand their interest in sex. What possible interest could they have if it wasn't to discriminate?

BTW - Interesting paper.

David Friedman said...

Sheetwise writes, apparently about states:

"What possible interest could they have if it wasn't to discriminate?"

This seems to assume that "discriminate" is automatically a bad thing to do. Does it count as discrimination if men are not allowed into the lady's room? Not allowed to enter a woman's tennis tournament? If prison cells contain either men or women but not one of each? Those are all cases where the question "is this person male or female" matters.

Back long ago when I was single and dating I discriminated--I was interested in women as potential girlfriends or wives, but not in men in the analogous roles—and wouldn't have been even if gay marriage had been legal. Was I discriminating? If so, was there something wrong with my doing so?

SheetWise said...

"This seems to assume that 'discriminate' is automatically a bad thing to do."

I think it is a bad thing when it's done by the state. Social customs regarding rest rooms and sports handicaps shouldn't involve the state. As far as prison goes, by the time a person has booked that reservation, many rights have been forfeited -- including your choice of roommate.

"Back long ago when I was single and dating I discriminated ..."

As we all do. I could never have survived as long as I have without discriminating -- but I see no place for it in the law. The state has no more of a legitimate interest in your sex than they do in your race or religion.