‘A woman and now a man’: The legitimation of sex-assignment surgery in the United States (1849–1886)

Background

Case one: A Gross Breach (1852)

Although Gross’s surgery did not present any unusual or innovative surgical techniques, it did provoke a fierce debate with regard to its moral foundations. Its audacity and presumed capacity to change a person’s sex seemed outrageous. Commentators from both the medical and legal fields reacted to the publication of this case with strong objections, arguing, as mentioned earlier, that the surgery breached the laws of morals, of nature and of men.

That this epistemic revolution was heralded by one of the most celebrated surgeons of the time may help explain the attention it received. Gross was called ‘The Nestor of American surgery’, ‘the father of American surgical research’ and ‘America’s first pathologist’, among other monikers (see Laios, 2018; Malkin, 2001; Toledo-Pereyra, 2006). His clinic has since been a site of scholarly interest and exploration, and it was depicted by Thomas Ekins in one of the most celebrated modern artworks in the US: ‘The Gross Clinic’, completed in 1875 (Bamber, 1998; Doyle, 1999; Tucker, 2012).

Part of what led to his fame was his frequent role as an expert witness. Gross was drawn to the subject of medical jurisprudence even in medical college, and in 1833, he was invited to serve as an expert witness in a high-profile murder case involving the strangulation of a pregnant woman. His testimony played a crucial role in the conviction of the defendant, Goetter, who had been represented by one of the most skilled lawyers of the area. This testimony boosted Gross’s career, and he soon after received his first professorship appointment.

Mohr suggests that Gross was a paradigmatic manifestation of how 19th-century US physicians could rise to greatness if they engaged in the operation of medical jurisprudence (Mohr, 1993: 52–54). In the following decades, Gross became a strong advocate for the implementation of medical evidence and testimonies in US courtrooms (Gross, 1868; Mohr, 1993: 53–54). But even when Gross conducted the surgery in 1849, he was already familiar with the potential of harnessing medical knowledge to judicial needs. In fact, Gross claimed that even as a child, he had had ‘naturally a high moral sense, and an utter detestation of misconduct and crime’, which later earned him the byname of ‘Judge’ (Gross, 1887: 7). We might speculate that Gross was attempting to use this surgery for a larger purpose: to create what he believed could be a promising collaboration between law and surgery.

Despite Gross’s authority and the respect he commanded, nearly all commentators reacted to the procedure with some degree of abhorrence. One criticism was relatively restrained: The British Chronicle of Medical Science published a brief account of Gross’s report in three lines and ended with a query: ‘A question then arises as to whether the operation was justifiable – the author, of course, takes the affirmative side’ (Gross, 1853). The editors of the journal in which Gross published his original report (The American Journal of the Medical Sciences) took a stronger tone in their final remarks. Not satisfied with the soundness of Gross’s argument, they backed away from his opinion, and analogized the surgery to no less than mercy killing, suggesting that the harm from surgery was out of proportion with the medical problem at hand:

[I]t appears to us the administration of prussic acid to terminate the sufferings of those afflicted with malignant disease, or who have received severe and irremediable injures, might be justified by the same train of reasoning (Gross, 1852: 390).

The lack-of-proportionality argument touched on a then-ongoing dispute between the radical and conservative philosophies of surgery in the United States (Brieger, 1992). According to the conservative surgical approach, it was legitimate to destroy some parts of the body in order to save others. The radical approach, however, warned against physicians’ appetite for surgery and the drama of the ‘surgical theatre’. It characterized the good surgeon as being bold but not reckless. According to Brieger (1992: 219), Gross’s clinic was a depiction of the conservative approach and demonstrated a central tenet of this philosophy: that complicated and daring surgery is legitimate if the end goal is to prevent pain and conserve life.

Other commentators expressed more extreme objections. In an 1853 editorial review of surgical developments in the Nashville Journal of Medicine and Surgery, the authors called the operation a paradigmatic illustration of ‘folly and absurdity’ (Nashville Journal of Medicine and Surgery, 1853). In their view, instead of helping the patient, Gross’s surgery actually secured the misfortune it was trying to prevent. In the original report, Gross had described removing perfectly formed testes, and this claim led the authors to assert ‘beyond all controversy’ that the little girl was a boy who was wrongly castrated by Gross: ‘It was intended to convert, by emasculation, this poor little boy – unfortunate by nature, and made doubly so by art into a girl’ (p. 245).

Both Gross and his critics based their reasoning on the essentialist assumption that masculinity is vested in testes, though they reached different conclusions. Gross thought that removing the testes would eliminate current ‘boyish’ behaviours’ and potential virility in the future. The critics, however, held that the boy’s virility vested in the removed testes would have superseded the child’s socialization as a girl, had the testes been left in place: ‘for the instinct resident in a brace of well-developed testes could not be expunged by all the paraphernalia of the wardrobe of the queen of Sheba, or the asseverations of all the midwives, male or female’ ¹¹ (Nashville Journal of Medicine and Surgery, 1853: 244). They suggested that puberty would have intensified his external and internal masculinization, and that this would have helped the child ‘more effectually than all the surgeon’s knives from Ambrose Paré to Gross’. They argued that Gross was vain when he meddled in nature’s plan for this boy: ‘the very voice with which nature has distinguished sex, so that the mouth couldn’t be opened without revealing it, has here been hushed by the surgeon’s skill’ (p. 245).

Regardless of the results of this particular case, however, the critics were repulsed by the surgery as a matter of principle. They said that it could not have been justified under any circumstances, ‘not by morals, science nor religion’ (Nashville Journal of Medicine and Surgery, 1853: 246). They were worried that it would become an accepted professional practice, as Gross recommended. This concern was legitimate due to Gross’s distinguished reputation and authority, and their fears were not far from what came to pass: In the same year as their report, Gross’s surgery was cited by a different physician, who mentioned it as a potential way to prevent suffering by those with ‘organs so imperfectly formed’ and who said that it had been performed ‘by one of our own most prominent surgeons’ (Blackman, 1853: 63).

Professor Gross realized that his actions carried unprecedented ethical, moral and legal implications. In his report, he justified his decision to operate based on the idea that ‘the records of medical jurisprudence are silent upon the subject’ (Gross, 1852). This was not the case, of course, as the topic of ‘doubtful sex’ had been routinely included in Beck’s Elements of Medical Jurisprudence since its first edition in 1823. Additionally, 19th-century medical jurisprudence books from England and the US described cases of doubtful sex and guided medical experts on the ‘right’ way of classifying people as either male or female.

The authors of widely known medical jurisprudence books took issue with Gross’s surgery in turn, formulating their critique mostly around the subject of rights (particularly legal rights). In 1860, to conclude a chapter on ‘doubtful sex’, Dr T Romeyn Beck dedicated a long footnote to Gross’s surgery. Beck was fairly restrained and merely posed the question of whether ‘we have a right to deprive a person of the sexual propensity’ (Beck and Beck, 1860: 186). Other medical jurisprudence authors, however, were enraged. In 1866, Dr Hartshorn, the American editor of the British Taylor Manual of Jurisprudence, included Gross’s surgery under the subheading of ‘Destruction of sex by operation’. Dr Hartshorn criticized Gross for depriving the child of the rights and privileges of males:

In a country where the rights of citizenship and power of voting for members of congress are much valued, where they depend on direct proofs of sex … it is a serious question whether he has not here struck a severe blow at the political rights of these beings, in thus wilfully destroying the physical evidence of the male sex! In this country, it might have been a question whether he had not rendered himself liable in damages for thus tampering with the laws of nature. (Taylor, 1866: 577)

It appears that Gross never responded to any of these criticisms, and it is unclear whether he ever repeated this surgery. In his own autobiography and textbooks on surgery, he made no reference to this case nor to the reactions it inspired. ¹² This silence could be due to regrets about having conducted it after being so fiercely criticized by colleagues, or perhaps he considered it to be an insignificant anecdote that left no special trace on his life story. Nevertheless, his episodic surgical entrepreneurship produced an enduring legacy: Gross injected into US surgical historiography the idea that hermaphroditism – or doubtful sex – had a surgical fix that could potentially solve it for once and for all. In this moment when surgeons were occupied with building their professional ethos (Porter, 2006: 193–194; Landsman, 1998: 453), Gross offered an epic role for surgeons: taking control of the laws of nature and men.

Case two: Avery (1868) – ‘a genuine hermaphrodite’

The next scandalous surgery to reconstruct the sex of a hermaphrodite individual was conducted almost two decades later by Dr Henry Newell Avery, in 1868. That year was an eventful one for Dr Avery: He moved to Poughkeepsie, NY, got married and was appointed Professor of Physiology in the New York Homoeopathic Medical College (Cleave, 1873: 96–97). In September, Dr Avery reported in The Medical Investigator that he had received a patient from Nova Scotia (Canada) who came to town to visit her sister and sought ‘surgical aid in the states’. She was a teacher, 24 years old, unmarried and she reported a ‘growth upon her privates’. Dr Avery was impressed by her ‘coarse voice’ and ‘masculine frame and face’.

Upon examination, Dr Avery found an unusual looking appearance. Although the right side of the outer folds of the vulva looked ‘natural’, in the left side, Avery reported a large tumour that looked like a testicle with a usual-looking scrotum. ‘In fact’, Dr Avery said, ‘everything resembled a testicle’. There was also no sign of a uterus. On further questioning, the patient stated that she vomited a small portion of blood upon waking up, and that the tumour had been there since she was 10 years old. According to Avery, she had sought him out because she wanted him to remove the tumour, as it annoyed her and her hometown physician said that he could not help her with it.

Dr Avery felt embarrassed by his unexpected finding and consulted with colleagues, who all agreed that the tumour resembled a testicle ‘in every respect’ and recommended an operation. Dr Avery proceeded to conduct the castration. The ‘tumour’ was removed and then examined under the microscope. After looking at the cellular structure and finding rudimentary spermatozoa in the convoluted tubes, the tumour was conclusively declared by Avery and his colleagues to be a testicle.

It is unclear whether Avery drew legitimacy to conduct this surgery from Gross, but he did not seem to think that he was operating in any unusual way. The reason for reporting the case, Dr Avery explained, was not the novelty of the operation but rather that he believed that despite the general agreement among scientific communities of the past century that hermaphrodites did not exist, here was an authorized case of a genuine hermaphrodite: ‘This being the only case, I believe, on record, where a testicle has been discovered in a woman, it will naturally interest many. The fact can now be settled that such a thing as a hermaphrodite has existed’ (Avery, 1868: 48). The medical community was indeed interested.

Although Gross had likewise removed a questionable testicle from a supposed female, the two surgeons received sharply different types of objections. Whereas Gross’s commentators focused on the problematic ethical, moral and legal implications of converting what they figured was a boy into a girl, Avery’s commentators for the most part forwent the ethics of the surgery and predominantly focused their oppositions to Avery’s statements that his patient was ‘as near a hermaphrodite as anything can be’ (Avery, 1868: 47) and that, contrary to scientific belief, this patient proved that hermaphrodites exist. Thus, Avery entered a turbulent area of contestation.

As part of their commitment to enlightenment, truth and the scientific way of producing facts, 18th-century medical writers in Europe had contested the ongoing belief in hermaphrodites. US medical writers shared the sentiment: They cited known European authorities who had developed classification mechanisms for so-called hermaphrodites, ¹³ claiming that hermaphroditism was a changing category placed on a fast-track for extinction. The ruling paradigm stated that every case of inconclusive sex could be classified eventually, and that arguing for the existence of hermaphrodites was unenlightened and superstitious:

Medical men ought to be extremely careful about giving sanction to popular notions and prejudices. If an unprofessional individual could get the assent of a medical men to one of his favourite whims he would feel as if he had undoubted authority for repeating cock and bull stories. (H, 1882: 193)

By the mid-19th century, denying the existence of hermaphrodites was a progressive scientific belief – indeed, it was a signal of professional competence and modernity. Gross himself dedicated a portion of his report to belie the ‘fable’ about the ‘imagined’ class of beings who combined the qualities of male and female that were called hermaphrodites (Gross, 1852: 389).

It was into this context that Dr Avery’s report, titled ‘A genuine hermaphrodite’, was introduced. In a set of public correspondences between medical commentators, the main concern was whether the patient was a kind of hermaphrodite or a male with some genital deformity. First to respond was Dr Benjamin Lee in The Medical Gazette in October 1868 (Lee, 1868: 53). Lee took issue with Avery’s conclusion that hermaphrodites exist: ‘On this final expression of opinion hinges the whole gist of the matter’ (p. 53). After he reviewed the signs reported by Avery in his investigation, Lee believed that the patient was a male with imperforate penis – in other words, that Avery had castrated a legal male. Lee said that every writer on medical jurisprudence would have solved this case, and that perhaps one other testicle lies beneath the skin and could be used to put the patient ‘in possession of his virility’. Lee believed that if the patient had presented themselves as a male, then Avery would have declared the patient to be so without hesitation. At the end of Lee’s letter, the editors of the Gazette agreed with Lee’s observations, adding that ‘a clearer case of hypospadias was never recorded’ and that ‘there can be but little doubt of a man having been castrated in this instance’ (p. 53).

This professional controversy regarding the existence of hermaphrodites became entangled with the rise of new diagnostic technologies. During the second half of the 19th century, visual evidence produced via technologies such as microscopes, X-ray tubes and telescopes emerged as a superior form of evidence, as it included details that were inaccessible to the naked human eye and offered a sort of new ‘mechanical objectivity’ (Golan, 2000, 2004b: 474). Accordingly, many treating physicians preserved tissues that they removed from their patients in order to submit them for microscopic examination to validate the nature of the body. Carl Muller, a ‘distinguished microscopist’ (American Observer Medical Monthly, 1869), was the editor of the ‘Pathology and Microscope’ section of the American Homoeopathic Observer. Muller was an enthusiastic believer in the potential of microscopic examination to settle the issue at hand and so asked Dr Avery for the removed testicle in order to conduct an independent examination. Muller found essential differences between the tumour and a testicle – mainly missing ducts and vessels – which made him conclude that this case was ‘one of True Lateral Hermaphroditism’, and he cast as ignorant the previous commentators who had figured that the patient was actually male.

A second round of quarrelling between Muller and physicians over the correct diagnosis occurred a few months later, when Dr JG Baldwin, a New York doctor with ‘a taste for natural history’ (Cleave, 1873: 340), wrote a review in Pathology and Microscope that supported the observations made by Dr Lee and the editors of The Medical Gazette (Baldwin and Müller, 1869). Baldwin described analogous cases reported in European medical encyclopaedias and concluded that the patient could not be classed as a ‘true or genuine hermaphrodite’ but was rather ‘a male with a hypospadic fissure, and that Dr Avery, while intending to remove a tumour from the privates of a woman, did really remove a testicle from the well-developed scrotum of a man’. Muller then used Baldwin’s opinion as an opportunity to advocate for microscopic examination as a better, more realistic form of observation and attacked Baldwin for ‘cramming’ the books to find evidence that would fit his hypothesis, instead of conducting a ‘rigid microscopical investigation’(Baldwin and Müller, 1869: 262).

The only voices who made a statement about the legitimacy of the surgery per se were Gross’s fiercest critics: the editors of the Nashville Journal in December of the same year. The writers started with a cynical remark about Avery’s alleged discovery: ‘why, bless your soul, good Doctor Avery, Dr S. D. Gross discovered two testicles in a woman!’ However, their criticism seemed despondent. Unlike in the 10-page critical essay condemning Gross, this author did not dwell on the moral, ethical and legal catastrophe but was rather satisfied with a two-page lecture, which more than anything else aimed for sarcasm and contempt regarding the surgical practice of castration for medical reasons. The author sadly joked about how castration had become a solution to treat small testicles.

Unlike the attention they had paid to Gross’s surgery, prominent medical jurisprudence books paid no attention to this case at all, nor to the surgeries that followed it. Their lack of response may have had several causes. First, it could have reflected the fact that this surgery was conducted by a lesser-known surgeon and that they therefore didn’t learn of it. Another possible reason for their silence could have been that this case involved a post-pubertal adult rather than a baby. Medical jurisprudence books considered the way bodies changed during adolescence to be significant and recommended waiting until after puberty to assign a sex, in order to avoid mistakes (Beatty, 1845: 159; Taylor, 1880: 711; Wharton and Stillé, 1855: 311). Lastly, during the final decades of the 19th century, trust in medical testimony and expert witnesses began to dramatically decrease, and the professional field of medical jurisprudence faded from its former greatness (Mohr, 1993). As one commentator in the New York Times explained, ‘Then medical – or, far better, medico-legal – experts were really respected; Now they are sadly suspected’ (New York Times, 1910). In any case, the medico-legal community seemed to have neglected the topic of hermaphrodites and did not contest reported cases of sex-assignment surgeries.

Around this time, physicians from the field of obstetrics and gynaecology began taking interest in the ongoing debate about the existence of hermaphrodites. A series of essays published in The American Journal of Obstetrics and Disease of Women and Children were dedicated to the question of hermaphroditism. Paul Mundé, a gynaecologist from Mount Sinai hospital in New York, published a report and presented it in front of the New York Obstetrical Society, exhibiting the case of a hermaphrodite patient named Catharina/Carl Hohmann, who had been examined by many doctors in Europe and the US. The detailed report described the multiple and contradictory diagnoses by doctors, particularly in light of Catherine’s changing body over the years. At the age of 48, after ‘there being no female function left’, Catherine entered Mundé’s office in male attire after changing his name legally to Carl (Mundé, 1876: 625). Mundé joined the general query of the time: ‘Is he a man, is she a woman or is it really a true lateral hermaphrodite?’ (Mundé, 1876: 629). He was unconvinced of any conclusion and generally seemed to support Hohmann’s decision to live as a male. While he did not mention Gross’s surgery at all, he did seem to believe that surgery – specifically, an autopsy – could provide definitive answers regarding Hohmann’s sex in the future.

Three years later, JW Underhill, the president of the Obstetrical Society of Cincinnati, joined the intellectual effort to determine whether hermaphrodites exist and said that the answer ‘depends entirely upon the definition of that term’ (Underhill, 1879: 174). By synthesizing the old common law rule of hermaphrodites and reported cases in medical literature, he concluded that ‘there does exist among the human species such a phenomenon as the hermaphrodite’. Like Mundé, Underhill did not mention any of the operations to construct sex, but rather projected faith in the capacity of a post-mortem operation to decide ‘to which sex the being more properly belongs’ (Underhill, 1879: 174). Although Underhill did not address the legal implications of establishing legal sex status through surgery, he was certainly aware of the legal implications of his practice: ‘the most practical points for our consideration relate to the legal relations of hermaphrodites’. He focused on three particularly fruitful areas – marriage, suffrage and inheritance (or ‘legitimacy’) – and commented that, in these instances and a few others ‘which require the distinguishment of sex, the testimony of competent medical authority is very essential for the correct and intelligent solution of the legal question at issue’ (Underhill, 1879: 176). Overall, it seems that gynaecologists believed that surgical techniques have probative qualities for questions of law but did not go as far as to claim that legal authorities should submit to medical authorities (Swasey, 1881).

Ethical concerns about genital surgery moved into the background as a new clash emerged: This reconceptualised debate was now a professional dispute between medical men over whether the person in question was a hermaphrodite and over which the instruments would be most reliable to reach any conclusion. That is, the debate no longer focused on the legitimacy of the surgery or on the liability of surgeons for interfering with the laws of men and nature. As the existence of hermaphrodites no longer drove the debate, it was then further musicalized and neutralized, and a new question took centre stage: Is the person really a male or a female?

Case three: McGuire (1884) – ‘A case of mistaken sex’

By the last decades of the 19th century, it was not uncommon for patients in the US to approach surgeons for classification of their ‘true sex’. ¹⁴ Dr William P McGuire, who came from a family of doctors in Virginia and served as president of the Virginia Medical Society (The Washington Post, 1926), was one of the surgeons who was approached in this way. He reported that on January 12, 1884, a lady patient entered his clinic ‘in order to have the sex to which she belonged determined’ (McGuire, 1884b). The voice and features looked to him ‘effeminate’ and ‘modest’, and the patient testified to have always presented herself as a woman.

The patient, who was well-known in the town of Winchester, went by the name of Elizabeth Rebecca Payne. ¹⁵ She was said to be ‘a most graceful and dashing horse rider’ who generated admiration when she rode into Winchester with ‘habit and somewhat long hair trailing in the wind’. Payne was one of five or six daughters, managed a farm and a store, and was known for her ‘remarkable business talent for a woman’ (Savannah Morning News, 1884).

After Dr McGuire examined Payne, he reported that he found a ‘small penis in the natural position about three-quarters an inch in length, with a well-formed glans and prepuce’ (McGuire, 1884b: 186). He conducted further examination and reported that the patient disclosed to him that she had ‘masculine desires’ and that during her sleep she would sometimes have ‘pleasurable sensations followed by an ejaculation of a white fluid from the opening of the urethra’, which Dr McGuire interpreted to be ‘of course, an ejaculation of semen’. He reports that ‘there was no trouble in determining her sex’, and he advised Payne to change her presentation to that of a man and to conduct a ‘plastic operation’ to reconstruct a new urethra in order to urinate more conveniently, ‘as she is now obliged to do so in the sitting posture’ (p. 186).

McGuire’s report differs from the other two cases described in notable ways. This patient did not undergo castration (i.e. removal of testes) but was rather advised to change her presentation of sex to that of man, and was offered a supporting procedure. Unlike in previous cases, McGuire expressly pronounced this procedure to be a ‘plastic operation’. The word plastic signifies that this was a specialized operation, rather than a cosmetic/beauty surgery conducted by charlatans and quacks, and secondly, that the operation was intended to solve an aesthetic-cultural issue (the patient’s posture while urinating) rather than a health matter (Haiken, 1997).

McGuire’s recommendation and actions were cutting-edge for the time. True, urethra relocation surgeries were not uncommon, but until this point, they had not been used as a way to surgically consign people to the opposite sex. Nevertheless, unlike in the two cases described earlier, the fact that McGuire offered a surgery to establish sex did not provoke any negative reactions from his professional community. This difference may reflect a change in how the nation related to surgeons: by the time Dr McGuire was practicing, US surgeons had reportedly reached heroic status. Whereas 18th-century surgeons in England had fought to become legitimate members of the scientific community, in the 19th century, US surgeons were celebrated as symbols of democracy – even as frontiersman (Lawrence, 1992: 9–10; Lawrence and Shapin, 1998: 188–197). Surgery in the US had successfully associated itself with values with which the country’s citizens identified, such as democracy and imperialism (Lawrence, 1992: 27–30; Rutkow and Lillemoe, 2018), and thus was granted more leeway than it had once been. The result was a vibrant surgical discourse on genital construction surgery for hermaphrodites, which made a name for US surgeons as potential helpers to hermaphrodites outside the US. ¹⁶

Dr McGuire’s case made waves in medical journals, and the way they reported on his case signalled another change in the focus of the debate. That is, whereas medical writers had previously focused on identifying real or true hermaphrodites, they were now contemplating real or true sex. ‘Whether doctors asserted or denied hermaphrodites’ reality, they tried to determine each patient’s true, singular sex with certainty, even though the bodies they saw manifested ambiguity’ (Reis, 2009: 124). Under this new ‘true sex’ paradigm, the remaining question was, therefore, not whether a given person was a ‘real’ hermaphrodite but rather whether this person was male or female.

To Dr McGuire’s statement that his patient’s sex was easy to determine, the Maryland Medical Journal reacted sceptically and argued that from an ‘anatomical standpoint’ the patient’s characteristics suggest that she was a female with imperfect sexual development (Editors, 1884a: 762). They suggested that descended ovaries could be mistaken for testicles, that an enlarged clitoris could be confused with a penis, and that ‘masculine’ sexual desire could be a result of ‘vicious moral influences’ and ‘bad associations’ (Editors, 1884a: 763). They argued that as long as McGuire did not validate the existence of spermatozoa in the white fluid, he could not know her sex ‘beyond a doubt’ (Editors, 1884a: 763). Shortly thereafter, McGuire published a reply in the same journal, accusing his critics of bad faith (McGuire, 1884a). His main response was that no female characteristics such as a uterus, vagina or menstruation were found during his examination, and that since the operation, the patient had married a female and was having ‘regular sexual intercourse with ejaculation of semen’ (with the only difference from usual being that it fell outside his wife’s vagina) (McGuire, 1884a: 774). The journal’s editors replied that they had merely pointed out the insufficiency of facts and evidence to support his conclusion (Editors, 1884b: 779).

Despite this focus on the patient’s ‘real sex’, however, a few medical writers also hashed out the older debate and thus tried to contextualize McGuire’s report within the evolving theory of vanishing hermaphrodites. They cited popular classifications and encyclopaedias on the subject to strengthen the view that true hermaphrodites did not exist. ¹⁷ At this point, however, no one argued that Payne was a genuine hermaphrodite nor that such a thing existed. Commentators who mentioned hermaphrodite theory and history did so only for the sake of resolving Payne’s correct classification as male or female.

Newspaper articles suggested that the notion of an elusive ‘real sex’ hidden within the body had become a common cultural idea, with headlines such as ‘Proved his real sex’, ‘A man who was a woman’, ‘A woman and now a man’ and ‘Masquerading for years’. Although the actual medical report says nothing about the operation itself and raises doubts as to whether it was even conducted (Reis, 2009: 74–75), the newspapers reported that Payne’s real sex was now exposed and declared, with the validation and help of a ‘simple and painless operation’ (St Paul Daily Globe, 1884a) completed by local well-respected surgeons: Dr McGuire, who was ‘widely known as a skilful surgeon’, and Dr Love, who was also considered to be a ‘highly esteemed physician and gentleman’ (Memphis Daily Appeal, 1884).

Newspaper reports additionally revealed that Payne’s legal sex had been changed. After visiting Dr McGuire, Payne astonished the County Court’s clerk, Mr Riley, by applying for a license to marry Anne Hinton, a domestic worker for Payne’s family. At first, Mr Riley refused, but newspapers reported that McGuire’s confirmation of Payne’s sex was sufficient to change his mind: ‘Payne proved his real sex by producing the certificate of Dr P. W. Maguire, of Winchester’ (Memphis Daily Appeal, 1884). Mr Riley apparently also asked that Payne change his name to one suiting the male sex, which Payne likely did. Payne and Hinton eventually married at the Southern Methodist Congressional Church in Martinsburg.

Newspapers also revealed a second viewpoint – that of Payne – through an interview in which Payne claimed to have had no long-term suspicions about his sex. Nevertheless, Payne was convinced by the surgeon’s declaration:

I really did not suspect my true sex … until three or four weeks ago, when some casual remark made by a lady friend aroused my suspicions. I then determined to go to Dr McGuire, but did not inform him of my perplexity. After professional inquiry he at once, but with much hesitancy, made known my true sex. I suppose it was the force of nature which impelled me to fall in love with Miss Hamilton. (St Paul Daily Globe, 1884b)

Why, then, was Payne immediately compliant with the surgeon’s rather radical advice to change sex? Perhaps compliance can be explained by the many benefits to which Payne would be entitled as a man. At the time, it was common for people with unclear sex to prefer (or to be advised by their parents) to present as male in order to enjoy male privileges (Flint, 1840; Goltman, 1897). In fact, some 19th-century US females presented themselves as males for similar reasons: to serve in the military, enjoy more security while traveling, earn higher wages, etc. (Manion, 2020a; Manion, 2020b). For Payne, then, being classified as male could offer access to many such privileges, from inheritance rights (given that Payne came from a family of daughters) to higher status in the business world. But the most obvious benefit of all was that being classified as male allowed Payne to marry Anne, about whom Payne was passionate and has been ‘struck with her beauty and ladylike bearing’ ever since Anne had come to work for her family (St Paul Daily Globe, 1884b).

In this as in other cases, then, physicians who treated people with unclear sex had the capacity to legitimate illicit same-sex relationships. In last decades of the 19th century, medical discourse in the US generated what Reis calls a Gordian knot between gonads, marriage and surgery (Reis, 2009: 82). Physicians who reported their interactions with hermaphrodites often expressed their wish to secure heterosexual copulations and marriages. For example, in 1880, Dr Gregory reported that a young man with what appeared to be a perfect vagina, female labia and urethra came to see him ‘anxious to get married’ and asked whether he should marry a man or a woman. Dr Gregory advised him to not get married, ‘because I really thought it was my duty to dissuade him’ (Gregory, 1880a). Gregory contemplated whether surgery could solve the problem, as ‘the removal of his rudimentary penis would leave him, so far as appearance goes, a perfect female’ (Gregory, 1880b: 547). This case exemplifies the Gordian knot that Reis mentioned: Gonads would often dictate the ‘real sex’, which, when affirmed by surgery, could ‘license’ the romantic relationship. This logic certainly translated to Payne’s situation.

Additionally, Payne’s statement that it ‘was the force of nature which impelled me to fall in love with Miss Hamilton’ conformed with the notion, promoted by sexologists and medical men, that sexual desire is congenital. Writers in the field of sexology often conflated hermaphroditism with sexual behaviour’s considered pathological (Reis, 2009: 62). Krafft-Ebing’s Psychopathia Sexualis, published in 1892, used the word hermaphroditism to create new categories of ‘deviant’ sexual behaviour’s: ‘mental’ and ‘psychical’ (Krafft-Ebing, 1892: 230–239).

The making of sexual desire into an innate characteristic was considered progressive, as it indicated that sexually ‘deviant’ behaviours were not criminal – rather, they were treatable and plausibly non-punishable. ¹⁸ However, the association between sexual deviance and hermaphroditism fused back into medical discourse about hermaphrodites and fed medical worry regarding hermaphrodites’ sexual morality (Allen, 1897). While sexologists did not address genital surgeries for hermaphrodites, the logic they offered to connect deviant psycho-sexual behaviour to hermaphroditism provided another line of support for using a surgical approach to restore Victorian sexual morality.

The field of gynaecology benefitted from justifications for genital surgery. In an essay titled ‘Hermaphroditism’, published in the American Journal of Obstetrics and Diseases of Women and Children, Dr George Dubois Parmly offered another such justification: It started by suggesting that many of those dubbed hermaphrodites were actually women masquerading as men. They were females with enlarged clitorises or ‘strong-minded’ women who, for the purpose of enjoying the civil and economic privileges of males, decided ‘to take the role of a man in social life’ (Parmly, 1886). Having been published just two years after Dr McGuire’s case, the paper addressed that case directly. Remarkably, the author did not think that Payne was a fraud or a woman in disguise – instead, he accepted the judgment of Dr McGuire and Dr Love, and he repeated their proclamation that Payne was ‘in truth a man’ and that ‘his sex was really masculine’ (Parmly, 1886). For Parmly, who believed in the concept of true sex and the need to prevent ‘ill-assorted unions’, Payne’s reassignment to the male sex by the doctors was a useful solution.

Gynaecologists had much to gain professionally from encouraging the use of genital surgery to fix different problems. In addition to using it in situations concerning hermaphrodites, gynaecologists continued attending patients with ‘deformed’ or ‘missing’ reproductive organs, often assisting surgical techniques to help their female patients perform ‘wifely obligations’. These procedures sometimes included the removal of ovaries or tumours, opening a cul-de-sac, fixing hernias, and more. In an essay exploring the ‘physical and moral’ effects of absence of the internal female sexual organs, Mundé (1899) reported he had performed castration ‘on hundreds of women for ovarian disease’. To alleviate patients’ worry about submitting to surgery that would remove gonads he added that ‘in none of these cases has there been any change in the physical appearance or in the moral or mental attributes’ (Mundé, 1899).

Although Mundé advocated for such surgeries as a way to solve pathological issues, his essay also included some creationist language referring to patients’ sex status. For example, he tells of a lady patient who asked for an operation ‘to bring on menstruation, hoping that she might thus be able to conceive’ and also ‘to have a proper vagina made’. In response, Mundé said that ‘an artificial vagina is easily constructed’. This idea of constructing genitals to make the body fit a gender assignment was not only accepted but also practiced by other gynaecologists into the 20th century, as just a few years later the journal published a report on an ‘operation for removal of the penis and the utilization of the skin covering it for the formation of a vaginal canal’ for a pseudohermaphrodite (Goffe, 1903). ¹⁹

Given the range of uses for these surgeries, for Mundé, Parmly and others, it was essential that genital surgeries remain legitimate and noncontroversial – otherwise, they and other gynaecologists would lose an important set of tools. As a result, medical motivations for conducting these surgeries were intertwined with cosmetic and cultural ones and used to support their continuation.

This trend toward genital surgery for different problems, hermaphroditism included, increased with the publication of more cases in medical journals and a special textbook on the subject in the following decades (e.g. Young, 1937). These publications no longer included any trace of the dramatic ethical crisis in mid-19th century. Over time, the field of sex-assignment surgery gradually became a urological specialty.

Conclusion

The professional consensus around the practice of sex-assignment surgery for people with unclear sex evolved dramatically in the second half of the 19th century in the United States. This practice, which was fiercely opposed in 1852, induced hardly any ethical challenges by 1882. According to the technocratic narrative, this new consensus should be seen as a product of successful (albeit dubious) surgical experience with this procedure as reported by Gross, Avery and McGuire. In this article, however, I show that the legitimation of the practice was bound up with professional trends that intended to modernize and thus ‘scientist’ surgical practice, and that these trends made it possible to understand sex-assignment as a scientific and medical labour rather than a legal or religious act of creation.

First, the reconceptualization of the body in anatomical language and theory also reconceptualized bodily abnormalities as surgical problems and legitimized surgical fixes as a way of handling them. Accordingly, medical reports on hermaphroditism explained this condition using complicated and cutting-edge anatomical theories that helped generate a scientific classification for it. Second, the theory that ‘true’ hermaphrodites did not exist was considered to be necessary for progress and modernity. The denial of true hermaphroditism was part of denouncing superstitions and folk tales, to mature from an era of supernatural or mythological creatures into a new world where anything can be explained in naturalistic, objective and physical terms.

These findings problematize the narrative of chronological advancement of technology and knowledge. The cases discussed here show that ethical challenges to whether surgeons should conduct surgery were reformulated as technical or methodological challenges as to which surgery to conduct, thereby removing the moral sting. This insight expands our understanding of the internal mechanisms by which scientific or semi-scientific professions legitimize their own controversial practices. As shown here, prior to the early 20th-century battle over traditional gender norms, US surgeons were already getting comfortable with surgically assigning patients to what surgeons believed was their ‘true’ sex.

In the process, surgery became a mode of judicial fact-making. As shown in the third case, a ‘note from the doctor’ was an extremely powerful tool that had the potential to change one’s legal sex status and rights immediately. Such a change is anything but trivial – when someone’s doubtful sex needed to be clarified for legal reasons prior to mid-19th century, the pursuit of truth would often be conducted in court. Sex assignment surgeries for hermaphrodites, however, consolidated two epistemic orders and roles: The surgeon was now a jury, judicial fact-finder and surgical fact-maker. This consolidated practice became more and more popular in the decades that followed, when surgeons became the constituters of legal sex.

Taken together, the trilogy of cases presented here can be understood as tracing an origin story for ‘plastic sex’. As historians and philosophers of sex have described, by the 19th century, Western culture had moved from a one-sex to a two-sex model (Laqueur, 1992). Here, though, emerged a novel model of sex, which maintains gravity and force in the legal sphere to this day: the idea of sex as plastically constructed by surgeons. Although this idea is usually attributed to early 20th-century surgeries for transsexuals and ‘inverts’ (Haiken, 1997; Meyerowitz, 2002: 21), this article shows earlier traces of the notion of malleable sex.

Today, many laws and policies related to defining legal sex (or reclassifying gender) rely on the person’s operative genital history (Spade, 2008), which reflects the legal recognition that surgeons have achieved in the past century. It is also evidence of the popularity of the self-made plastic sex model, brought to life by the surgical discourse of ‘doubtful sex’ cases and a scalpel. Exploring surgeons’ creationist force in the legal sphere contributes to the scholarship concerned with the role of science and technology in the formation of governance. By historicizing the process through which surgeons appropriated the capacity to determine sex, we can demystify other connections between body morphology and legal status taking place continuously.