Medico-legal definitions of women and their social consequences
University of London.
The rest of the story is well-known: not-very-bright Eve is inadequately supervised by foreman Adam and of course she breaks the machinery of Paradise. When Managing Director God strolls down the shop-floor in the evening, he notices his workforce's absence and hauls both of them up before him. Caught in the act, Adam blames Eve and God the Magistrate sentences them both. As the less guilty party (she led him astray ) Adam is provided with an opportunity to support himself and thus to resist further temptations to law-breaking whereas Eve is given the severe physical punishment of childbirth and the perpetual stigmatisation of menstruation. Pathologised as physically inferior, criminalised as the first law-breaker, and with those legal and medical statuses endorsed by the moral authority of the Church, Eve is the archetype of woman as inevitable degenerate - even though by any fair legal standards, she was unfairly sentenced on "the uncorroborated evidence of a co-accused", as the feminist QC Helena Kennedy puts it in her book Eve Was Framed.(2)
The purpose of this playful reworking of the Judaeo-Christian Creation myth is two-fold. First, it is to indicate the way in which many of the social roles of UK men and women today are resonant with the gender-oppositional relationships, attitudes and actions described in those few verses of the Bible. Second, it is to begin to trace the way in which definitions of woman have been arrived at. Third, though, it is to suggest that this is a constructed meaning, that we don't have to read the myth as being about power relationships and restrictiveness and that there are other ways of thinking about the basis of social relationships between men and women.
For example, we might read the myth as a metaphor of humanity's creativity and discovery of new ways of being, through a natural cycle of movement. So, sleeping humanity, personified in Adam, dreams of a new way of being, personified as Eve: the rational mind becomes aware of the instinctive mind, we might say, or that which is known discovers that which is the "other." In this reading, the serpent as archetypal symbol of new life and rebirth becomes the creative inspiration which humanity follows to move beyond the restrictions of its current understanding, into a new world of being which is more self-reliant - a process of individuation, of psychic growth symbolised as physical independence. In this reading, the Fall becomes a triumph, a fall from ignorance to wisdom, a natural, necessary loss to be able to make a greater gain.
Alternatively we could draw on Greek traditions or earlier ones still which, together with Judaeo-Christian myth, provide the basis of what we are pleased to call Western civilisation. There is no real reason, outside that of official state religious belief, why we should not regard Plato's account of Creation given in the Symposium as equally as valid as that of Genesis, or give similar credence to the account given in the Mesopotamian Epic of Gilgamesh, or to Egyptian myths.
Or we could stay within UK state religion and quite simply prefer the second, earlier Creation story in Genesis which states "So God created man in his own image, in the image of God created he him: male and female created he them" (3) with its implicit statement that God is both male and female and that Creation produced equity, not a power relationship. Indeed, it is perhaps when we consider this alternative version that we wonder why our society so consistently prefers one version over the other and what that indicates about the dominant ideologies in our culture.
I have concentrated on the Creation myth because this story provides so much of the foundation on which woman's role has been built. The cultural processes by which this has taken place are most effectively described in Jules Cashford's The Myth of the Goddess,(4) a seminal book on the role of women in society, which traces the way in which the image of an immanent, feminine Creator was overtaken by the image of a male, transcendent God and relates that to changing views of the role of woman. In her chapter on Eve, Jules describes a second reductive process to which the definition of woman was subject, that of Aristotle who, in his work On the Generation of Animals defined woman not as the creator of life but as the passive vehicle which allowed men to create new life. For Aristotle, too, a girl child was the product of a flawed process, "the result either of the debility of the active power, of some unsuitability in the material, or of some change effected by external influences, like the south wind, for example, which is damp."(5)
Genesis and Aristotle initiated a discussion of woman's condition which terminated in what Jules calls "the perplexing debate of the Middle Ages: 'Habet Mailer Animum?'- Does Woman have a Soul?" She sums up the emotional impact of this debate by quoting an anonymous Irish lament for Eve:
"I am Eve, the wife of noble Adam; it was I who violated Jesus in the past; it was I who robbed my children of heaven; it is I by right who should have been crucified. I had heaven at my command; evil the bad choice that shamed me; evil the punishment for my crime that has aged me; alas, my hand is not pure. It was I who plucked the apple; it went past the narrow of my gullet; as long as they live in daylight, women will not cease from folly on account of that. There would be no ice in any place; there would be no bright windy winter; there would be no hell, there would be no greed, there would be no terror but for me."(6)
Here, Eve's acceptance of guilt for literally all of the evils of the world reflects that process which Gramsci calls "hegemony," (7) the process through which individuals or groups contribute to their own subservience by subscribing to the ideologies through which they are disempowered. It is a powerful and painful lament, the more painful since this is Eve as Everywoman, describing the only reflection of herself that society allows her to see: guilty, inept, irresponsible and completely alone, had wife, bad mother, bad lover, unregenerate and unforgiven.
The appalling consequences in the Middle Ages of these definitions of woman as without moral sense or soul, as a lesser being whose desire for forbidden knowledge is dangerous to man, was the witch-hunt. Sprenger and Kramer's Malleus Malleficarum was unequivocal: "If a woman dare to cure without having studied, she is a witch and must die." This one statement contains the combined power of theology, law and medicine, each working to support the other two. Thus, midwives, women-healers and wise women all repeated Eve's original sin of seeking knowledge which was forbidden to their gender: to study, one had to go to university; to go to university, one had to be a priest; to be a priest, one had to be a man.
Malleus Malleficarum also extended the process of pathologising woman's moral degeneracy into physical insufficiency, which Aristotle began, by advancing the scientific 'fact' that each month, evil humours rose from the woman's womb and deranged her mind: hysteria. Thus, she was naturally mentally incapable, and must be 'protected' by men, who were not subject to such conditions. Since the Church provided the basis of the legal profession as well as that of the medical profession, it is not surprising that women's legal status became defined as that of the property of man, held in a perpetual custodial sentence, too dangerous a criminal ever to be let free.
Where do medical, theological and legal definitions leave women today? Clearly, there have been advances in the three thousand years since Genesis was written, although developments can hardly be said to have taken place with indecent haste - after all, the Sex Discrimination Act was passed only in 1975, less than twenty years ago! As recently as 1970, in the notorious divorce case of Corbett v Corbett, the presiding judge, Sir Roger Ormrod, defined women in terms of marriage, that is, in terms of state and Church intertwined. Ormrod's view of marriage was that "it is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element . . . the question then becomes what is meant by the word 'woman' in the context of a marriage." (8) His answer to that question was that the role of the woman is to breed and since the respondent could not do that, she was "not capable of performing the essential role of a woman in marriage" and thus was "not a woman for the purposes of marriage." (9) Perhaps even more interestingly, this view was supported twenty years later by the European Court's decision on another, appealed case which involved marriage, that of Cossey v United Kingdom, in which it decided that the UK was free to describe marriage and the legal definition of a woman for the purpose of marriage in whatever terms it wished.
Both of these cases involved women who were born with the syndrome that is now called Gender Identity Disorder (GID) and since that syndrome affects women predominantly, it provides some interesting insights into the way in which UK society continues to frame Eve. Broadly, the syndrome arises from a genetic predisposition which is activated by a hormonal imbalance while the child is in the womb. As we know, all children are female for the first ten or twelve weeks of their lives (another thing the Bible got wrong: Eve came first) and are then subject to two 'shots' of hormones, one which promotes the formation of female or male genitalia and the other which promotes the development of a female or male 'deep centre' in the hypothalamus of the brain. Usually, these two hormonal influences are congruent but if they are not then the child will be produced with the primary sexual characteristics of the opposite sex: if the condition is not diagnosed and treated then those will usually develop into secondary sexual characteristics to some degree or another at puberty. Clearly, the individual themself is aware that there is a problem and at some point they will generally present for treatment, which is by medication to redress the hormonal imbalance and reconstructive surgery to correct the physical deformity insofar as that is technically possible. Thus, in some way at least, the Creation myth is replayed, with the surgeon as God rather than God as the surgeon: the question is, which version of the myth is being enacted?
Medically, this treatment has a 95% success rate, higher than that of almost any other chronic condition and that should, perhaps, be the only interesting thing to note about this minority syndrome. Curiously, though, UK law removes civil liberties and provides a series of special penalties that take effect as soon as the syndrome is diagnosed and which continue in effect for the rest of the life of the woman concerned. She may not marry; she may not adopt children; and no matter how long she has been in employment, or how good a job she does, she may be dismissed instantly, simply because she is being or has been treated for GID. At birth, of course, she was mistakenly registered as a boy child on the grounds of her incorrect genital formation. That registration may not be corrected and thus she continues with a legal identity which is male and which means that the crime of rape is not chargeable against her; and if she is detained or given a custodial sentence she may be sent to a male prison. Thus, she is both pathologised - because her dominant cultural feature becomes her medical condition - and criminalised - because her medical condition carries automatic legal injunctions against her. Should she turn to the Church for support, she is likely to find that she is considered to be morally degenerate, and that her corrective surgery defines her theologically as being unable to "enter into the congregation of the Lord." (10) Small wonder, then, that some people commit suicide when they find that they have the syndrome, rather than face the social and legal consequences of treatment. And yet those who win through go on to live otherwise unremarkable lives, as do other people who are treated successfully for other congenital medical conditions.
Why, and how? Why is this the case, why are these people discriminated against so harshly, what are the fears and uncertainties that they bring to the surface in our society that causes it to react in such an irrational and unfeeling way? And how does the process of discrimination operate?
As far as the "why?" is concerned, a range of ideas is available to provide reasoned explanations. A sociologist such as Ernst Goffman might tell us that women with GID suffer from what he calls in his book Stigma(11) a "spoiled identity" and that their rejection by society is the result of the dissonance between their "virtual social identity" - the characteristics which a person appears to possess - and their "actual social identity" - the characteristics which they can in fact be proved to possess. Hence Ormrod's rejection of a woman whose appearance is indistinguishable from that of other women but who cannot fulfil the actual social role of childbirth. A structuralist might turn to binary opposition theory for an answer. That theory suggests that words have meaning only in opposition to other words and that the basis of meaning lies in the oppositions of two-word systems. So, in the opposition 'Land' and 'Sea' the terms are mutually exclusive and yet together they form a complete system - the earth's surface. These stark oppositions actively suppress ambiguities and any activity which does not fit such a binary opposition will be subject to ritual or repression: female children born with GID are initially identified as boys, do not therefore fit into either neat category and thus lie in the middle state of social taboo. The work of Communication theorists such as Stanley Cohen (12) and Howard Becker(13) might extend this to suggest that society uses "labelling systems" to define social deviance which it then expresses through the creation of moral panics and so-called "folk-devils." Certainly, newspaper reports of people who were among the first to receive treatment for the condition, in the 1950's, used terms such as "monster" to describe them. And a political philosopher such as Louis AIthusser might suggest that the ideology of the ruling elite is in operation here, using its powerful institutions of law, medicine and Church - the "ideological state apparatus" (14) - to define society's notions of correctness and penalise anything which does not conform with those definitions. And indeed, when we consider that the woman in Corbett v Corbett was working class and unable to bear children, and that she was married to the son and heir of Lord Rowallan, and that Ormrod later stated that the issue of inheritance was a key one, one might wonder whether AIthusser's bleak world is so far from the truth after all.
Still, though, these explanations of "Why" keep slipping over unsatisfactorily into "How" and perhaps we have to go further back, to the myth base and to the 'Adam's rib' version of Eve, to uncover society's deeper concerns.
In a literal reading of the Creation myth, Eve takes knowledge which belonged only to God: her transgression is the greater since she is the inferior creation and her expected role is to support, not subvert, Man. Translated across, the woman who is born with GID is brought up as a male and gains knowledge of the male world from the inside, as it were, which is normally not available to women. That knowledge may be trivial and worthless but it is forbidden knowledge nevertheless and when the person concerned reveals their real identity, the horror of man may be as great as that of the God in whose image he has made himself, and as repressively punitive.
In a less literal reading, woman as Eve is asserting her right to an independent existence; to exploring imposed limits and defining her boundaries for herself, rather than allowing others to define them for her. It is this which threatens the overturn of legalistic repression and this which a power-based society must oppose. In this reading, the issue of women born with GID falls into the same arena as other minority-group challenges to the status quo, whether it is lesbian mothers, black civil liberties or alternative approaches to medical care.
Moving still further from literality, the Creation myth may be read as a personal script, a desire to explore all of the potentialities in oneself, to realise the interconnectedness of male and female and to face the challenges to such an exploration that are posed by traditional methods of thought and belief. Here, perhaps the person who is born with GID is too real a demonstration that gender oppositions can be transcended and that while women and men may be ultimately different they are nevertheless absolutely equal. In a society that defines itself and its members primarily in hierarchical and oppositional terms, as the UK has come to do, both the spiritual importance and the social significance of such a message may be too uncomfortable to accept.
This final explanation may lead us to reflect on ways in which our society understands that which is sacred. So much of that understanding implies, without stating, a denial of gender specificity. This is shown, for example, by the less popular Creation myth, which indicates that God contains characteristics that are both male and female; by the implication of the more popular myth that, since Eve was made from Adam's rib, Adam in his perfect, first-created state contained both male and female; by the tradition suggested by Scotus Erigena that Christ at his resurrection "was neither man nor woman" (15) and by Julian of Norwich's vision of "Mother Jesus." (16) This is a different way of thinking than that to which our secularised society is used, with resonances of surrendering self to find Self, a quiet insistence on pushing through external form to discover that which is real beneath, and a desire for the reconciliation of opposites, such as that expressed, for example, in the Gnostic Gospel of St Thomas:
When you make two into one
The "Why?" of the issue about the harsh treatment of women born with GID may be answered, then, by suggesting that it provides a profound challenge to the conscious values of a patriarchal society. The challenge is to the inviolability of the distinction between male and female which is so often used as an indicator of ability and status. Thus, society may respond by trying to deny the validity, perhaps even the existence, of a phenomenon which causes it concern at such fundamental levels. If this is so, then how does the process of denial operate?
Amongst other forms of discrimination, the medieval persecution of wise women has taught us that, at its simplest, a three stage process operates. First, a specific name is given to the subject of discrimination to dehumanise them, objectify them and reduce them from people with feelings and needs to an alien being which is simply dangerous. Women became witches. Second, science extends the dehumanising process by providing a reductive, 'rational' description of this dangerous being and suggesting ways in which the danger might be contained or destroyed by existing state bodies. Sprenger and Kramer provided the diagnostic manual for witches, the Church trained specialist diagnosticians - witch-hunters - and the law provided penalties for all those identified as witches. Third, opposition to this new, dominant ideology is reduced by ensuring that the only viewpoint which is heard is that of the State, so that society at large has no opportunity to understand or debate this phenomenon and is left with the sole choice of agreement. Aristotle, Ambrose, Augustine, Origen, Jerome, Aquinas, Luther and Calvin contributed to this one-sided debate, to say nothing of the Bible itself: the Church controlled written communication by owning the only means of its production and influenced oral communication by the viciously punitive censorship system of the Catholic Church's Inquisition and, of course, the Protestant Church's equivalent of the Witchfinder General. It is sobering to recall that the last witch was beheaded in Scotland in 1782, a little over two hundred years ago.
And in a similar process, in the past, women born with GID have been given the emotive and degrading label of "transsexual," a label which suggests that they are neither one sex nor the other, not proper people at all, but something in between; that indicates that their condition is somehow erotically based, sexual, rather than being a question of gender identity; and that allows an easy confusion between this largely woman-based congenital syndrome and the fetishistic cross-dressing transvestism - that is an almost entirely male activity. In the second stage of the process, their condition has been defined as another form of women's madness, a psychological derangement and not a physiological condition at all. And finally, the media have conspired to present only two images of such women, either as unnaturally beautiful and exotic entertainers or as pitifully grotesque social misfits.
The case of Corbett v Corbett, which I referred to at the start of this paper, provides an appropriate illustration of this process. April Ashley was born with and treated for GID and married wealthy socialite Arthur Corbett. The marriage didn't work out and Corbett started divorce proceedings: at this point, 1970, divorce by mutual consent was not possible and since April did not finally agree to the divorce, Corbett decided to institute proceedings on the grounds that the marriage had never been legal in the first place since April had been registered as a boy at birth and must always, therefore, be considered male. This was a novel argument at the time since, before this 1970 legal watershed, people born with GID simply applied for a correction to their Birth Certificate and then had the full legal rights - including that of marriage - of their proper gender. April had neglected to apply for the correction, presumably since their was no need to feel that her self-evident female status needed paper certification and because the Birth Certificate had not acquired the special potency which her case was to give it. What was she, then?
Woman or witch? Good wife or evil Eve? The report of the trial makes sad reading. The opinions of the gender of the respondent given by expert witnesses were conflicting and Ormrod was obliged to prefer one view over another. Evidence was given by three expert witnesses on each side and since opinion was divided, the judge felt obliged to create a medical test of his own and decided that this should be on the basis of chromosomal, gonadal and genital factors. In modern medical terms, the very factors that indicate that the syndrome exists were to be used to deny its validity. Other realities were equally redefined by the judge: it was preferable to think of April's vagina, he said, not as being a vagina but as "a cavity which opened on the perineum." (18) This then allowed him to say that "the difference between sexual intercourse using it, and anal or intra-crural intercourse is, in my judgment, to be measured in centimetres." (19) April was not a woman, then, but "a male homosexual transsexualist" or more simply "a castrated male." Eventually, the judge subscribed entirely to his own judgment and decided that she did not even look like a woman: "Her outward appearance, at first sight, was convincingly feminine but on closer and longer examination in the witness box it was much less so. The voice, manner, gestures and attitude became increasingly reminiscent of the accomplished female impersonator." Thus he was able to reconcile, in one person, the two stigmatising images of unnatural beauty and grotesque misfit.
Prurient, subjective and partial, Ormrod's medico-legal judgment removed significant civil liberties for a whole community of UK women up to this day. The situation is quite different elsewhere in the world. In Germany, the USA, Canada, Scandinavia, Holland, Turkey and South Australia, legislation means that after treatment for GID the individual gains the full legal status of their proper gender. Elsewhere, the same status is provided at law, on application to the courts with appropriate medical evidence: this is the case in, for example, France, Switzerland, Belgium, Italy, Spain and Finland. In the UK, Indonesia, Singapore and Ireland the only concession is a correction of selective documentation, providing an equivocal civil status and none of the legal protections for the individual which are given elsewhere.
Very recently, there have been some signs of a change. Six months ago, the Equal Opportunities Commission supported a case against sex discrimination in the Industrial Tribunal P v S and Cornwall County Council (19) in which P had been dismissed when her employee found that she was being treated for GID. One great advance which that case produced was the granting of reporting restrictions on P's identity to save her from being pilloried by the media, a concession which all other people in similar circumstances may now apply for. That case was referred to the European Court since the Tribunal found that P was not covered by the Sex Discrimination Act and Helena Kennedy will be presenting it in Luxembourg in eighteen months time. This month, the American Psychiatric Association published its fourth edition of the Diagnostic and Statistical Manual, the guidelines used for diagnosing GID, in which it has now replaced the term "transsexualism" with "Gender Identity Disorder." Last year, the Council of Europe held a colloquy on European law, in which it considered the legal status of people born with GID and from which guidelines for this area will eventually emanate. And the voluntary organisation Press For Change, which is affiliated to the National Council for Civil Liberties continues to lobby Parliament for a restitution of the pre-1970 status quo.
What in all of this, though, can we learn about the way in which women are defined and allowed to operate in our society? GID has the capacity to, as the Futurists put it, "make strange" our understanding of gender, to make it overt and to focus conscious attention on it. Thus, the case of P v S and Cornwall County Council is the case of workplace discrimination writ large, as the case of Corbett v Corbett is that of social discrimination writ large. But perhaps what should draw our attention most is the deliberate manipulation of medical definitions to achieve a different legal status quo. April Corbett could not bear children and so was not a woman for the purposes of marriage: where does that leave every other woman who cannot bear children? What does it mean about the basis of personal relationships between men and women? Why was one set of medical evidence preferred over another and what basis does the law have for making such a preference? How did a judgment about marriage spread over into every other area of the citizen's life and why, especially, was it allowed to affect employment rights - the rights that give access to the money which represents power in our society? How far are we divorcing the law from natural justice and obvious realities by accepting that women treated for GID cannot legally be raped, although they possess a vagina as capable of penetration as that of any other woman, and what kind of hidden violence against women are we supporting if we acknowledge that such women may be sent to a man's prison? Each of these disempowerments of women born with GID mirror and enlarge disempowerments that are or have been experienced by other women: if Ormrod did not grant April Corbett the legal status of a woman, perhaps he compensated her with a double dose of the political status of a woman.
Pushing beyond these immediate, shocking concerns, how was it possible for the women's movement in the 1970s to accept the Corbett judgment so wholly that it either calumniated women born with GID, as Janice Raymond did in her hysterical work The Transsexual Empire,(23) or idealise their state into fantasy, as Angela Garter did in The Passion of the New Eve?(24) Both writers refused to consider the lived realities of women with this syndrome and both denied them status or a voice. Even now, in an intellectual climate that is concerned with exploring the gender divide, works such as Judith Butler's Gender Trouble: Feminism and the Subversion of Identity (1990) reduces women born with GID to the status of metaphor, a passing point in a deconstructive argument about the nature of desire: "the imaginary status of desire, of course, is not restricted to the transsexual identity; the phantasmic nature of desire reveals the body not as its ground or cause but as its occasion and its object." (25)
And finally, simply, why is there a problem in any event? What consequence does society or the individual have to fear if every individual has equal rights and equal treatment? To whose advantage is it to maintain this situation and what part of the social fabric would crumble were it to be rectified?
I have no answers to these questions beyond those which I have given already. Perhaps, with T. S. Eliot, we should accept that "human kind/ Cannot bear very much reality" (26) but I would prefer to support the case for a better understanding of those who are amongst the least powerful in our society but who represent courage against oppression. Without real exploration of the human condition in all of its manifestations, without questioning the definitions which the most influential establishments in our society offer us, we will not develop qualities such as compassion and creativity, and we will not, finally, be able to find a satisfactory modus operandi either personally or as a society. We must unframe Eve, rehabilitate her, and in so doing find release and new life ourselves: as Yeats puts it, "Love is all/ Unsatisfied/ That cannot take the whole/ Body and soul/ And that is what Jane said." (27)
Citation: Playdon, Z-J., (1994), Unframing Eve: Medico-legal definitions of women and their social consequences, GENDYS '94, The Third International Gender Dysphoria Conference, Manchester England.
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