‘All humans are male, female, or hermaphrodite‘ (Rolandus Passagerii)
In the past decade or so, a number of countries have changed their laws and statutes concerning the legal status of intersex people. In Germany, the German Federal Constitutional Court ruled in autumn 2017 that the then-current law of persons was unconstitutional because it assigned a legal gender to any citizen but did not offer options beyond ‚male‘ and ‚female‘ for intersex people. (In Germany, children have to be registered by law within seven days after birth, including the legal gender.) This is a major change, as throughout the twentieth century legal gender was strictly binary in Germany as in many other countries. Any ‚third gender‘ or even special procedures for people ‚between‘ the two sexes simply did not exist, and even jurisprudence on this question was largely silent.
This was different in pre-modern law, as is evident inter alia from many primary sources presented at this blog. As for legal sources, many of them come – unsurprisingly perhaps – from the Digest, from great canon lawyers like Gratian, Huguccio, Hostiensis, or indeed Roman law scholars like Baldus. They all agreed that ‚hermaphrodites‘ had to be reckoned with; some went even so far as Azo (d. around 1250), who very broadly asserted that in the law of persons it was fundamentally important to take into account legal gender and, in this context, that ’some are male, some female, and some hermaphrodite‘.1
However, it was not only the learned jurists at the medieval unversity who argued about ‚hermaphrodites‘. Even the artes notariae, written for the day-to-day business of notaries, faithfully repeat the distinction between male, female and hermaphrodite, indicating that it was thought to matter in practice. The Summa artis notariae of Rolandus Passagerii (d. ca. 1300) is perhaps the most widely used of these works. It was read very widely, and directly informed a vernacular Roman law manual that enjoyed some popularity in Poland, Austria and Hungary. In England, both Bracton and Fleta followed the distinction found in the Digest in a very similar way. In short, the concept of the ‘prevailing sex’ was part and parcel of the ius commune on both sides of the Channel.
The Summa deals with the law of persons by listing six ‚distinctions‘ (divisiones), by and large on the basis on the Digest. However, compared the to Digest, Rolandus gave the distinction of the three sexes an even more prominent place than the Digest had done. Rolandus’s Summa presented the distinction between men, women and hermaphrodites as the first (of six) markers of legal status. The Digest, in contrast, had called the distinction between free and unfree the summa divisio, and accordingly treated it first. In practice, Rolandus held, only two legal genders mattered, but nonetheless he devoted considerable space to the third sex.
The two passage in question (p. 803-804 and 806 respectively in the Lyon 1559 edition) read as follows:
De personis et personarum divisionibus. Ex personis sex divisiones fiunt. Prima divisio est talis: Omnes homines aut sunt masculi, aut foeminae, aut Hermaphroditi. […] Hermaphroditi, qui habent utrumque sexum, masculum videlicet et foemininum; sed si magis incalescet et praevalet foemineus, censetur sexus foemineus. Si vero praevalet masculinus sexus, censetur masculus.
On persons and the divisions of persons.
There six divisions of persons. The first is this one: All humans are either men, or women, or hermaphrodites. […] Hermaphrodites are those who have both sexes,
that is, male and female. For them, the following rule is given: That either the female sex prevails, and they thus are regarded as women, or the male sex prevails, and they thus are regarded as men. Therefore, the threefold division
can be reduced to a binary division, because [hermaphrodites] belong to the first [division], if the male sex prevails, or the second, if the female sex prevails.
1 Azonis in ius civilem Summa, Lyon 1564, here at fol. 281r. See here for text and translation: https://www.academia.edu/8962918/Roman_law_on_hermaphrodites.