The mythological origins of the hermaphrodite and the legal and social history of a troubling condition

Outcasts amongst outcasts, they were confined to the very fringes of humanity. These are the ‘genitally double’ individuals, who display either obvious or barely discernible signs of both male and female sexual organs. Until the nineteenth century, they were subjected to physical examinations, trials and convictions on the grounds of a pathological condition that aroused both astonishment and revulsion. Placed under the magnifying glass of science, the hermaphrodite was regarded as a freak of nature. Yet certain doctrines of early Christianity rehabilitate them as a symbol of perfection, corresponding to a worldview that envisages an androgynous being at the dawn of creation. The theory of primordial bisexuality is found in Christian Gnosticism, in certain Talmudic texts and in rabbinic exegesis. The Byzantine theologian Maximus the Confessor (580–662) maintained that Christ united the two sexes within his nature, for upon his resurrection he was neither male nor female, even though he was born and died as a man. According to the Gnostic Gospel of Philip (2nd–3rd century AD), ‘when Eve was in Adam, death did not exist, but when she was separated from him, death began’. And, even more so in the Gospel of Thomas (c. 120–140 AD), ‘when one finds a single thing within oneself, one will be full of light. When he is separated, he will be full of darkness’. The point of convergence between these different beliefs was the androgyny of Adam, who, as Rabbi Isaac (1534–1572) said, “was created as a dual being, male and female. He [God] cut him in two, and thus two beings were formed, one from the east and one from the west” (The Tree of Life).

The term ‘hermaphrodite’, as used in Western cultures, derives from the inability of Hermes and Aphrodite to prevail over one another in imparting their respective sexual characteristics to their son, ‘in whose graceful face the beauty of both parents was evident. Thus the name they were given, which in Greek sounds ‘hermaphrodite’,” writes Publius Ovidius Naso in "Metamorphoses". According to the Latin poet’s account, Salmacis, a nymph of a spring in Caria, Anatolia, fell in love with the young son of Mercury and Venus; having been rejected by the youth, she implored the gods that their two bodies might be joined so closely together as to form a single one. Her wish was granted: Hermaphroditus, who had entered the spring, became a being half man and half woman. Turning to the gods, Hermaphroditus secured a decree that all those who bathed in the same spring would undergo the same transformation.

The social and legal history of hermaphroditism is quite another matter. It is a history of ‘infamy’, as Michel Foucault defines it in a manuscript written in the mid-1970s and now translated into Italian by Einaudi (Gli ermafroditi, preface by Arianna Sforzini, afterword by Éric Fassin, translated by Duccio Sacchi, June 2026). Indeed, “the hermaphrodite falls within the category of infamy – that is, the legal disqualification afflicting people who have a bad reputation, whether as a result of a formal conviction, or following scandals and public misconduct, or as a consequence of their status at birth or a physical defect (the infamy of illegitimate children, the descendants of slaves, and eunuchs”. The legal infamy of hermaphrodites thus accumulates the effects of an unacknowledged origin. A hermaphrodite whose chosen sex is male is not, however, a man in the full legal sense of the term. They are burdened by a series of civil and religious incapacities: they cannot be ordained as a priest; they cannot be a judge, a lawyer or a rector. He may be subject to the same criminal sentences as a man, although he is sometimes spared – as a woman would be – from hard labour and hanging.

“She must be burnt alive and her body reduced to ashes; her property and inheritance must be seized and forfeited to the Crown.” In early 17th-century Normandy, the King’s deputy prosecutor sentenced Marie Le Marcis to death for committing acts of lust contrary to the law. Marie, who had worn women’s clothing for twenty years, suddenly decided to take the name Marin in order to be united with Jeanne Lefebvre, the beloved partner with whom she had long since “had carnal relations”. The incident shattered the tranquillity of the town of Montivilliers. A trial was held in which Marie was accused of wrongfully donning men’s clothing, of unlawfully assuming a man’s name, of seeking to impersonate a man, of committing, together with Jeanne, the abominable crime of sodomy and lust, and finally of using ‘the sacred cloak of marriage to abuse her sexuality more freely’.

Despite the observation by more than one surgeon that Marie “was a woman in every respect” and the testimonies of two women “who stated that Marie had, on numerous occasions, experienced her natural menstruation”, the accused strongly maintained that “her male parts had always remained hidden within her body and did not emerge except when she performed the acts of marriage”. In other words, from the dock, the woman stated that “since she had been in the hands of the law, the penis had not only retracted into its sheath […] but was not as large as usual, measuring no more than the thickness and length of a thumb”.

The legal defence of the two women fell to the doctor Jacques Duval, who, in Marie/Marin’s defence, put forward evidence that ‘the genital parts of this hermaphrodite, due to the body’s extreme dampness and frigidity, have been formed and retained internally’. In other words: it was only thanks to “lovely thoughts and spirits flowing into the genital apparatus” that Marie/Marin’s male part was able to emerge and assert itself. Duval also upheld the right to “the existence of the human body in the state and substance in which nature intended it to be formed”. The court ultimately ruled in favour of the two women’s defence: Marie/Marin possessed “something that made him and rendered him different from women: it was this male member hidden within, on account of which the name ‘hermaphrodite’ applies to him and belongs to him”. For this reason, the death sentence was quashed, but Le Marcis was ordered to “resume wearing women’s clothing and to continue wearing it until the age of twenty-five [he was twenty-one at the time]”, along with a prohibition “on living with any person of either sex on pain of death”.

In a sense, we are still operating within an Aristotelian paradigm: there are ‘normal’ forms, and then there are the ‘monsters’ of which the Stagirite speaks. There is a horror of what is abnormal, but at the same time a kind of admiration for what evokes a lost unity. Foucault, too, cites the biblical account: ‘When Adam existed and Eve had not yet been taken from his body, was Adam not a hermaphrodite who united within himself the two natures of man and woman?’. In this regard, one might also cite the famous myth of the androgyne recounted by Aristophanes in Plato’s “Symposium”: ancestral, spherical, perfect beings, so perfect as to defy the gods – later cut in two by Zeus. But very soon the fascination of the myth gives way to revulsion. An horror that dates back even to conception, the result of ‘extraordinary indecencies’. The Dutch physician and astrologer Levinus Lemnius attributed the birth of hermaphrodites to the fact that the man lies beneath the woman, an unacceptable reversal of the natural hierarchy (De habitu et constitutione corporis, 1561). Whereas in medieval bestiaries, the hermaphrodite was described as a sort of necromancer who had the power to reproduce itself as both father and mother.

How did the law respond to this oddity of nature? According to Foucault, with unexpected generosity. In the case of the hermaphrodite, in fact, ‘where nature has not clearly manifested its intentions, it is the subject themselves who can make up for this silence’. In other words, it was up to them to define themselves as a man or a woman. Once chosen, however, the assumed sex became definitive and could no longer be changed: “The law recognises only one sex per person, regardless of whether the link between the person and their sex is by nature or by choice”. What the law rejected, therefore, was not the individual of ambiguous sex, but rather the person who abandoned their chosen sex and assumed the other. “The problem,” Foucault emphasises, “was not the unusual juxtaposition of organs, but the succession of different identities: and what made this change an abomination was the fact that it allowed the hermaphrodite to make two uses of their body, one as a woman and the other as a man.”

As we have already seen, Marie Le Marcis was sentenced to death in 1601. In her case, the unexpected twist is that the judge no longer decides alone. He is joined by a doctor, who plays a significant role in formulating the sentence: ‘Medicine,’ states Foucault, ‘tends to abandon the theme of the confusion of natures in order to set out instead in search of identifying sex’. Consequently, “from then on, judges would no longer simply be dealing with mixed identities from which a choice had to be made, but with hidden sexes, deceptions and illusions”. Thus, the notion of “sexuality” began to gain ground, moving away from the concept of sex as something fixed and definitive – even if the result of a free individual choice. A sexuality that can change and evolve over time.

In the eighteenth century, Foucault observes, according to the physician Michael Alberti, ‘the male sex is recognised by courage, gestures and facial expressions’, as well as ‘by the presence and distribution of body hair, the robustness of the body, the existence of the penis and the desire for penetration’. In short, the virility of the soul and masculine behaviour are as characteristic of the ‘normal’ male sex as heterosexuality and the genital organs. In this sense, gender helps to bring hermaphrodites within the norm. However, it produces other ‘abnormal’ individuals, this time in terms of sexuality rather than sex: homosexuals. Whilst we have become more tolerant of practices that transgress the law, “even today we continue to believe that some of them insult the ‘truth’: a ‘passive’ man, a ‘masculine’ woman, people of the same sex who love one another”. Whether we are talking about gender or sexuality, “we are faced with some sort of error”.

Foucault then analyses a whole body of nineteenth-century judicial case law relating to applications for the annulment of marriage. Civil law, in fact, was much stricter than canon law regarding the conditions for annulment. In canon law, marriage was inseparable from the consummation of sexual relations. Civil law, for its part, defined it more simply as the union of two people of different sexes, without requiring the existence of sexual relations to certify its validity. Consequently, to have a marriage annulled, recourse was often made to allegations that the spouse was a hermaphrodite. As it was difficult to obtain this kind of evidence from doctors, judges accepted other arguments. Two, in particular. On the one hand, the right of each spouse to a ‘healthy, complete and satisfying’ sex life. On the other, the danger to public order and public health (incitement to adultery, transmission of genetic defects to future generations) posed by the mismatch between sex (male or female) and sexuality (sexual behaviour within the couple).

This discrepancy makes it possible to isolate the population of ‘perverts’, of whom the hermaphrodite becomes the model. Here, Foucault revisits and develops ideas already present in the first volume of The History of Sexuality, The Will to Knowledge (Feltrinelli, 2013). Many of these ideas have sparked memorable debates, which cannot be covered in these notes. But one thing can be said. Linguistics established itself as a scientific discipline when it set aside the philosophical question of the origin of languages to turn to the analysis of their evolution and functioning. The same applies to gender studies. They made a similar shift when, rather than focusing on the origin of male dominance, they analysed the mechanisms of power that reproduce it in ever-changing forms. Rather than seeking, through literary or religious fantasies, the poetic utopia of a bisexual anatomy—an age of innocence predating the separation of the sexes (one might think of today’s ‘gender-fluid’ theories)—Foucault prefers to emphasise the dismay provoked by a being in whom the essences of the feminine and the masculine are conflated. In this day and age, that is no small achievement.