The modern mulatto: a comparative analysis of the social and legal positions of mulattoes in the antebellum south and the intersex in contemporary America.

AuthorGeorge, Marie-Amelie

"This case involves the most basic of questions. When is a man a man, and when is a woman a woman? Every schoolchild, even of tender years, is confident he or she can tell the difference, especially if the person is wearing no clothes." (1) With this opening statement, Judge Harberger, writing the majority opinion in Littleton v. Prange, quickly goes on to demonstrate that this most basic of questions can be more difficult to answer than appears at first glance. The case at issue, which required the court to determine the legal sex of a post-operative transsexual, questioned the basic notion that male and female are fixed, immutable, and oppositional categories. The very premise of the case is an assault on the foundational assumption that sex is a binary and biological phenomenon, which has been overwhelming accepted in contemporary thought. Importantly, these two concepts once underpinned race theory, but were subsequently rejected by both the academic and legal worlds. (2) The same, while examined and critiqued at length in feminist and sexuality theory, (3) has thus far failed to occur in the realm of legal doctrine and social consciousness.

This Article seeks to add to the scholarship that illustrates the way in which sex can be conceptualized in much the same way as race, and may thus be divested of the presumptions of dichotomy and physiology, by comparing the regulation of race in the antebellum period (4) and sex in the modern day. In doing so, it also aims to undermine objections that sex and race are not in fact parallel socio-physiological categories. (5) Specifically, this Article examines the manner in which antebellum mulattoes, whose mixed race challenged the bases for racial hierarchy, were socially and legally made black so as to be folded within the binary on which slavery depended. It then follows this analysis with a consideration of the ways in which the intersex, who are persons with ambiguously sexed genitals, chromosomes, or phenotypes, are physically forced into one sex or the other so as not to cast doubt on the sexual binary necessary to sustain a patriarchal political and social system. Using this comparison as a framework from which to extend its deconstruction of social categories, this Article then turns to an examination of the role of the law in regulating sexual identity, noting how the law has the potential to be used to create sex in much the same way as it was employed to craft race during the antebellum period.

The importance of this analogy is evident in the implications that flow from it. If sex is as much a construction as is race, the laws and statutes which rely on sexual demarcations, such as whether an individual is protected by Title VII, what penal laws may be applied to a person, in which athletic competitions an individual is permitted to participate, whether a person is subject to a military draft, and who an individual may marry, among others, lose their foundational support, as the premises on which they rely do not exist. (6) The social impact is potentially much greater, as the law is but a shallow reflection of the deep sex-based differences on which society is based. Whether a legal recognition that sex is a construction will have a substantial effect on social norms is unclear, though the possibility does exist. (7) With these ideas in mind, Part I of this Article begins by focusing on race in the American antebellum South, detailing both the cultural factors that resulted in mulattoes joining the disfavored racial category and the legal means by which a binary racial hierarchy was established. This section discusses the attempts at combating miscegenation, as well as the regulations that delineated blackness and established mulattoes' place as blacks in terms of status, condition, and physicality. In Part II, the analysis turns to theoretical perspectives on sex as a social creation so as to provide a framework from which to develop a better understanding of the ways in which the intersex, as the physical intermediaries between the two established sexes, violate the political and social order. Part III examines the social and legal position of intersex individuals in contemporary American society, drawing attention to the parallels and divergences between the legal status of the intersex today and mulattoes of the antebellum world. It then highlights the ways in which this serves to undermine the basis for different judicial standards of review for race and sex based discrimination. Part IV concludes the Article, evaluating the likelihood for potential change in the law's treatment of sex as a biological phenomenon.

  1. SOCIAL AND LEGAL REGULATION OF MULATTOES IN THE ANTEBELLUM SOUTH

    The constructed nature of race is clearly illustrated by the social perspectives on and the legal regulation of miscegenation in the antebellum South. Interracial sexual relationships, while accepted as standard in some parts of the South during the colonial era, were by the antebellum period uniformly perceived as extremely dangerous to white supremacy. This was due in large part to the mulatto offspring they produced, as mixed-race children blurred the line between the races, thereby upsetting the clear racial hierarchy on which slavery depended. Slavery was defended on the notion that racial stratification was part of a natural order, one in which whites dominated blacks due to their superior physical, mental, and behavioral traits. (8) Racial dilution not only led to a deterioration of these attributes, but also demonstrated immorality and cultural degeneracy. (9) Mulattoes, as evidence of interracial sex, were also "a visible reproach to the white man's failure to live up to basic moral and social precepts." (10) Consequently, hybridism was described as "heinous," and mulattoes became a "spurious" issue requiring legal regulation. (11)

    Mulattoes threatened a vision of the natural order as being one of clear, defined categories to one of gradations, a theory upon which the institution of slavery could not stand, as "[s]lavery rest[ed] on the fundamental distinction between human labor and those who own[ed] it, and the total relations between master and slave generate[d] the idea that all relationships ... should [have] be[en] total." (12) Plantation economies required whites to control the labor force in its entirety, a proposition that would have been impossible were it not for the strict bounds of the racial hierarchy. By relegating mulattoes to the status of their pure black contemporaries, the sharpness of racial distinctions would be maintained, and the power relationships that relied on racial purity could be sustained. (13) Such a clear racial divide also provided Southern lawmakers with a means of preventing interracial alliances between white servants and blacks, as giving value to whiteness granted the servant class privileges that they would seek to preserve. (14) Consequently, the white underclass would identify its interests as protected by racial division, as opposed to developing a class-based ideology, which could have undermined the system on which the Southern economy was based.

    Given the threats they produced, interracial sexual liaisons had to be deterred and the mixed-race progeny regulated so as not to disturb the political and economic systems that fostered white privilege. Before turning to the legal measures adopted to accomplish these goals, however, it is first instructive to examine the ways in which colonial attitudes on amalgamation formed and developed, as such information will assist in understanding the timing and purpose of the legal regulations.

    1. Social Perspectives of Mulattoes in the Colonial Era

      The colonial South was not unified in terms of racial divides, attitudes, and mixing, but rather was a bifurcated region with respect to the status of blacks and mulattoes. (15) The upper South, comprised of Delaware, Virginia, Maryland, Kentucky, Tennessee, North Carolina, Missouri, and the District of Columbia, contained a relatively large mulatto population. (16) Often the offspring of white indentured servants and both free and enslaved blacks, a considerable portion were free, but overwhelmingly impoverished. (17) The economically depressed circumstances into which they were born, along with the low status of their parents and their residence in rural, rather than urban, areas, guaranteed mulattoes a place in the social underclass. Mulattoes did tend to rank in the upper echelons of free black society, but this did not alter the ways in which white citizens viewed mixed-race persons. (18) Indeed, whites equated mulattoes with blacks, making few distinctions as to hue or ancestry amongst persons of color. Mulattoes were thus just as socially, economically, and legally marginalized as their fully black brethren.

      The lower South, consisting of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas, (19) had a contrastingly generous view of free mulattoes, and afforded these individuals a status superior to that of blacks, thereby creating a third, intermediate class between black and white. (20) The impetus for this was based on practical as well as cultural influences, many of which were linked to the settlement pattern that emerged in the lower South. Unlike the upper South, many early immigrants to the lower South were from the West Indies, where the pattern of race relations resulted in a multi-tiered racial hierarchy, with mulattoes serving as a variable intermediate class. (21) Further, settlement in the lower South was characterized by a small number of white plantation owners and overseers and a large population of black slaves. (22) The scarcity of white women encouraged amalgamation, both because it increased a sense of sexual license and because it prevented settlers from reestablishing European patterns of domestic life, with its ideal of a monogamous heterosexual couple at its center...

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