Today’s post is written by a guest blogger, Jennifer Haselberger, JCL, PhD. Dr. Haselberger is a Senior Research Fellow, the Robbins Collection in Religious and Civil Law, University of California Berkeley Law School. She previously served as the Archdiocese of Saint Paul and Minneapolis’ Chancellor for Canonical Affairs until resigning in 2013 in protest of how the Archdiocese handled accusations of clergy sexual abuse.
In 1975, the Catholic Church’s Roman Rota, which is the Church’s highest court, deliberated on a case in which one of the parties was identified as, using the nomenclature of the 1970s, a transsexual. 1 There is nothing particularly surprising that the Rota reviewed the case; the court cited prior canonical opinions or decisions issued in 1888, 1911, 1912, 1924, 1932, 1961, and 1972 involving intersex and transgender parties.
What is surprising, in light of the recent instruction by the Congregation for Catholic Education, Male and Female He Created Them, is that in reaching its decision the court applied to transgender persons a longstanding canonical doctrine that had earlier been applied to intersex people: when ordering one’s external and social life, intersex individuals have the right to present according to their psychological gender rather than their biological sex.
This doctrine contrasts with the position articulated in Male and Female, which seeks to incontrovertibly link concepts of sex and gender, decrying “distinctions proposed between various ‘sexual orientations’ which are no longer defined by the sexual difference between male and female, and can then assume other forms, determined solely by the individual, who is seen as radically autonomous.” The Rota’s 1975 decision argues in favor of just that autonomy for the individual when it is a matter of the external and social elements of a person’s life, such as manner of dress.
The legal reasoning that inspired this opinion can be traced back to the law of the Roman Empire. Under classical Roman law, the condition of being intersex was viewed as organic and functional, meaning that intersex persons were thought to be able to act as either a man or a woman as a matter of will. Following this idea, the 1975 decision notes: “[P]revailing canonical teaching recognized for them [intersex people] the right whether they wished to be joined in marriage as a man or a woman.” The decision also acknowledges that “transsexuals feel like the soul of a woman in the body of a man or vice versa, without hope being had of a return of the psychological sex to the original sex,” so it concludes that transgender people have the same rights as “nothing prevents predominance from being attributed to the psychological sex…’when there is a question of ordering one’s purely external and social life.’”
Rejecting the notion that a transsexual person is always psychologically and physically incapable of deliberating upon or fulfilling the obligations of marriage, the Rota’s decision, which explicitly references the six-level “Sex Orientation Scale” found in H. Benjamin’s The Transsexual Phenomenon (1966), notes that “the fact that the man must feel himself a woman or vice versa, is no obstacle to the fulfillment of the obligation just as aphrodisiacs are not an obstacle to the consummation of marriage.” The only consistent standard for invalidity of a mariage, according to the decision, was “irremediable impotency for procreation”. In other words, the ability to marry was dependent on the ability to have children. According to the medical science of the 1970s, post-operation transgender individuals were perpetually impotent. Therefore, the Catholic Church believed that post-operation they were incapable of validly contracting marriage, while pre-operation they were not. However, it is worth noting that today the Catholic Church embraces a much more holistic view of fertility, making a distinction between impotence (the inability to copulate) and sterility (an inability to procreate that is separate from the ability to copulate). Sterility is not an impediment to marriage.
Had this “prevailing canonical teaching” informed the Vatican’s new document for Catholic schools, it should have affirmed the right of transgender and intersex students, faculty, and staff to live according to their gender identity. It would have encouraged Catholic parents and institutions to grant to the individual the right to determine their gender when it comes to outward expression such as in the choice of school uniforms and participation in sports. This guidance did not happen.
The 1975 decision demonstrates that the Catholic Church was at one time in the not too distant past willing to be instructed on these issues by doctors, scientists, and the lived experience of transgender and intersex Catholics and their families, and that it responded to that instruction with the type of empathy and love that many have found absent in more recent Catholic documents. We shouldn’t lose sight of this important history even as we are confronted with a less palatable present.
–Jennifer Haselberger, June 17, 2019
Related Bondings 2.0 Posts
June 10, 2019: “New Ways Ministry Responds to Vatican Document on Gender Identity” by Francis DeBernardo
June 11, 2019: LGBTQ-Related Excerpts from Male and Female He Created Them selected by Robert Shine
June 13, 2019: “The Vatican’s New Document on Gender: Is There Hope?” by Deacon Ray Dever
June 15, 2019, “Vatican’s Gender Document Harms ALL, Not Just LGBTQI Folks” by Professor Cristina Traina
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