High Court’s 1975 Decision Points to Alternative Vatican Path on Gender Identity Issues

Jennifer Haselberger

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

For the latest in Catholic LGBTQI news, opinion, and spirituality, subscribe to Bondings 2.0 for daily updates sent directly to your inbox. Visit www.newwaysministry.org/subscribe to sign up.

  1. Sacred Roman Rota, “Transvestites, Transsexuals, and Marriage” (14 April, 1975). Published in James I. O’Connor, Canon Law Digest: Officially Published Documents Affecting the Code of Canon Law 1973-1977, Vol. 8, Chicago Provence S.J., 1978, pp. 754-768.
8 replies
  1. John Hilgeman
    John Hilgeman says:

    Interesting. I wonder what happened at the Vatican that led to the current state of affairs. Were the decisions of the officials back then just forgotten? Or did someone just ignore or overrule them?

    There is a very interesting article on the National Geographic website about the place of transgender people in the Hindu religion. And indeed, there are long traditions in other world cultures where such individuals are accepted and valued. One would think that Roman Catholicism could be more enlightened, especially in light of these rulings by the Roman Rota.
    https://www.nationalgeographic.com/culture/2019/05/transgender-spiritual-order-acceptance-kumbh-mela/?cmpid=org=ngp::mc=crm-email::src=ngp::cmp=editorial::add=sunstills_20190616::rid=2865508

    Reply
  2. Kris
    Kris says:

    Who’s really being driven by ideology here? In light of this ghost from 1975, it is clearly the Vatican.

    Thanks for this ‘truth bomb’. The Vatican will wish it had never been detonated.

    Reply
  3. Tom Bower
    Tom Bower says:

    I love the term “truth bomb” as an upgrade to “speaking truth to power”. Kudos.

    More to the point of today’s message is the hierarchy’s current stance that visible gender bits must necessarily equal gender as the brain intends, which reminds me of the previously raised false concept that having a heart transplant might change one’s romantic attachments. When will the Vatican give all bishops an anatomy lesson and have them learn what the organs do?

    Reply
  4. Joseph Prever
    Joseph Prever says:

    From the same document:

    “Both (transvestism and transsexualism) can be considered symptoms or syndromes of the same underlying psychopathological condition, that of a sex or gender role disorientation and indecision. Transvestism is the minor though the more frequent, transsexualism the much more serious although rarer disorder.”

    http://www.clsadb.com/document/e004025d-4cba-44c0-901b-5f99e1525ca5?backLink=%2Fsearch%2F%3Fq%3DA%2520new%2520proposal%2520of%2520a%2520marriage%2520nullity%2520case%2520to%2520the%2520Roman%2520Rota%26volume%3D_%26order%3Drelevance%26page%3D2%26take%3D20

    Reply
  5. Joseph Prever
    Joseph Prever says:

    In the document cited, intersex persons are only noted to have been permitted to marry either a man or a woman “because at that time hermaphroditism was thought (falsely, of course) to be not only organic but also functional so that those affected by it could, as regards generation, act at will as either a man or a woman, the prevailing canonical teaching recognized for them the right whether they wished to be joined in marriage as a man or as a woman.”

    http://www.clsadb.com/document/e004025d-4cba-44c0-901b-5f99e1525ca5?backLink=%2Fsearch%2F%3Fq%3DA%2520new%2520proposal%2520of%2520a%2520marriage%2520nullity%2520case%2520to%2520the%2520Roman%2520Rota%26volume%3D_%26order%3Drelevance%26page%3D2%26take%3D20

    Reply
  6. Michael Toner
    Michael Toner says:

    John Hillman, above, asks, “what happened?” JP II and Ratzinger happened… Together as popes and CDF enforcer, they did their best to return the church to pre-Vatican II thinking, erasing the progress that had been made in the post-conciliar era. Together they were a disaster for the church. This ignoring of 1976 Rota decision is simply par for the course that these two laid out…

    Reply

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