Social crimes in medicolegal spaces: gender nonconformityand the crisis of category in the 19th-20th century Australian imagination
In the late nineteenth century in Australia the field of sexology was just beginning to emerge, globalisation and industrialisation were heralding huge changes in the construction of gender roles and gendered bodies, and the place of gender in medicine was undergoing a seismic shift. Cases of gender nonconformity during this period provide intriguing insights into the formation of gendered medicine, the idea of the medically gendered (and sexed) body, and the pathologisation of non-normative gender experiences. These cases are often characterised specifically by the confusion and anxiety that they provoke, the norms that they transgress, and the categories that they make incoherent merely by virtue of their existence. To address this incoherency – and to acknowledge the historical specificity of ways of perceiving or experiencing gender and sexuality – scholars have often resorted to terms such as ‘transgender-approximate’ or ‘lesbian-like’ alongside code-switching designators such as ‘mannish lesbian’, ‘passing women’, ‘female husband’, and historical slurs such as ‘man-woman’, ‘invert’, ‘she-male’, and ‘hermaphrodite’.[1] I have chosen to refer to cases of ‘gender transgression’ or alternatively ‘gender subversion’ in order to avoid ahistorically subsuming any particular behaviour or experience into terms such as ‘transgender’, ‘transsexual’, ‘gay’, ‘queer’, or ‘lesbian’, and to validate their potential antecedence of all these identities, as well as their relevance to a broader continuum of gender crossing and same-sex sexuality.
This essay will investigate historical instances of gender nonconformity, their pathologisation,and the ways in which they sparked interest in the Australian public imagination. Often due to the construction of their bodies as medically transgressive, and their identities as psychologically transgressive, the subjects of these caseswere considered to be criminals regardless of whether there was an actual legal (rather than moral or social) infraction involved. The cases rise to prominence as medical case studies, as legal matters, and as non-legally-prosecutable threats to normative society. As a result of these multiple paths, the meanings, myths, and power structures around instances of gender nonconformity are produced not only through the field of medicine or the courts of law but also in the court of public opinion. Often when gender transgressors were involved in legal infractions, their gender would be a major part of the conversation even when there was no law for addressing the gender crime itself, or when their crime was ostensibly unrelated. For example, during the murder trial of Harry Crawford/Eugenia Falleni, newspaper articles were published with titles such as ‘Woman Marries Women’ (identifying Crawford’s marriages to Annie Birkett and others as the primary point of interest, rather than Crawford’s alleged murder of Birkett) and ‘“MAN-WOMAN” ON TRIAL’ (implying that Crawford’s gender transgression was the reason for being on trial rather than the murder charge).[2]Likewise the Barrier Miner headlined the case with ‘WOMAN MASQUERAD'NG AS MAN IS CHARGED WITH MURDER’, prefacing the gender transgression before the crime and also acting as if the two were correlated.[3]In this case the gender misalignment was presented as a more urgent piece of news – and a more dire offence – than a charge of blunt-force murder. Ruth Ford notes that Crawford’s trial was ‘powerfully shaped’ by their gender identity but also by other socially marginalised aspects of their character, i.e. being ‘poor, working-class, illiterate and an Italian migrant’.[4]The legal proceedings around instances of gender subversion and their popular representation in the mediawere generally dictated in equal part by legal professionals and by medical professionals, and then filtered through the media in increasingly sensationalised ways. The infractions of the subjects were not solely medicolegal transgressions but alsosocial transgressions with a great deal of potential for insight into contemporaneous ideas, behaviours, and norms around gender, as well as the function of gender (and other social categories) as modes of control.
In my engagement with these cases I have made particular choices around the kinds of phrasing, descriptive terms, pronouns, and assumed subject positions employed around discussions of gender behaviour, dress, and identity. There is no ideal solution to the question ofauthentically preserving historically specific experiences and selfhoodswhile also coherently connecting historical cases to a modern culture of gender and sexuality founded on radically different structures, codes, and categories. Terms such as ‘concealment of sex’, ‘imposture’, ‘cross-dressing’, and so on serve to imply that the gender subversion was necessarily temporary or circumstantial, and that assigned gender is a more enduring ‘truth’ than the gender that someone chose to identify with or present as. Terms such as ‘same-sex’ fix the gender of both parties in place as well as assuming a binary and linear relationship with sex or gender categories. Rather than reassigning these cases into new and perhaps equally prescriptive categories (of ‘cisgender lesbian’, of ‘transgender man’, of ‘binary trans woman’, of ‘monosexual gay man’, or the like), I hope to explore the multiplicities and potentialities implied by the lack of category coherency.
In line with this aim, I will avoid the usage of pronouns for the most part and use gender-neutral ‘they/them/their’ pronouns where necessary, and I will default to the chosen names of gender transgressors rather than their legal or assigned names. Of course these will not always be the most appropriate options for describing specific cases, and this also carries the risk of degendering figures who might have felt strongly about the importance of their gendered subjectivity; still, I feel that this is preferable to attempting to decide for myself the ‘correct’ gender of each subject.The process of investigating and recognising gender transgressors while also attempting to respect their autonomy is something of a contradiction in terms – since generally these cases are characterised by a desire to go uninvestigated and unrecognised. Terry Castle calls these types of cases ‘apparitional’, making reference specifically to lesbian traditions, wherein the cultural figure of the lesbian is ‘never with us, it seems, but always somewhere else: in the shadows, in the margins, hidden from history’.[5]Castle disagrees with Foucauldian traditions that posit a lack of coherent queer identity prior to the twentieth century, since to her this theory ‘relies… heavily on a condescending belief in the intellectual and erotic naiveté of women of past epochs’, and only serves to compound the erasure of the ‘apparitional lesbian’, who is ‘made to seem invisible – by culture itself’.[6]
I would place myself somewhere between these two schools of thought; biologically essentialist narratives of queer identity as ahistorically static or inborn across history seem greatly implausible, and yet it does seem that Foucault – or at least Foucauldian scholars – perhaps go too far in assuming that sexuality was only ever behaviour and not identity before 1900.Terms such as ‘invert’, ‘sapphic woman’, and ‘man-woman’ were widely circulated in nineteenth century Australia, as adjectives and descriptive nouns not just verbs – which seems to be the primary difference between the ‘sodomite’ and the ‘act of sodomy’. Although the Western binary gender system emerged only relatively recently (Thomas Laqueur places it as manifesting at some point in the eighteenth century) gender has in almost every time and place borne major relevance towards the construction of personal subjectivity and social roles, regardless of the various forms in which it may have appeared.[7]If we take Butler’s view that gender is performative and that ‘gender reality is created through sustained social performances’, then since one of the major ways in which gender is ‘performed’ is through the expression of sexuality (through an interactive process that Gayle Rubin calls the ‘sex/gender system’) then surely it is no great leap to say that sexual activity may well have had a constitutive role in identity, especially in cases where the boundary between sexuality and gender identity is so unclear.[8]Foucault himself likens the development of static gay identity to ‘a kind of interior androgyny, a hermaphroditism of the soul’ – and if sodomite-as-identity and androgyne-as-identity are comparable, then it stands to the reason that cases where sexual activity or relationshipslent credence to androgyny, cases of gender confusion and subversion must also have had some bearing on gender and sexual identity.[9]
Still, the likelihood of gender and sexuality being felt as part of an interior identity in these cases does not mean that those interior identities were fixed, coherent, or analogous to modern categories. The invisibilised, fragmentary and rebellious nature of transgressive identity/behaviour results in dilemmas of ethical scholarship that are not easily resolved. In the current climate of gender theory there is a tendency to cast historical gender transgressions as narratives circulating around either gender or sexuality, usually validating one of these at the expense of the other; for example,promoting a narrative of queer masculinity in cases of AMAB (assigned male at birth) people dressing as women, it is possible to inadvertently invalidateidentity possibilities of transfemininity or trans womanhood.[10]While attempting to validate one kind of historical precedent it is entirely possibly to obscure and delegitimise another, particularly with regard to the historiographical trend of setting queer and transgender histories at odds with each other.The matter of whose history these cases belong to is a matter of some contention. Lucy Chesser describes this as a process of weighing up the value that certain cases might bring to feminist or lesbian history compared to the potential harm that might be perpetuated by claiming possibly transmasculine figures as lesbian and thus ‘obliterat[ing] transgendered [sic] lives from history’, although of course in cases concerning transfeminine rather than transmasculine individuals there is perhaps more of a natural coherency towards claiming those stories as part of a queer transgenderwomen’s history rather than of a queer, transgender,or women’s history.[11]The matter is only complicated further by the frequent lack of personal records from the gender transgressive subjects themselves, whose experiences were usually channelled through coercive and authoritative contexts such as medicine, law, or the media. Writing on Harry Crawford/Eugenia Falleni, Suzanne Falkiner notes that ‘there seemed no internal logic to the pattern of events as they were described. The explanation… did not add up’, and that ‘always [Crawford] was somehow absent from the account’.[12]Often cases were only ‘discovered’ – i.e. brought to public attention – after the person had died (thus relinquishing control over the types of narratives that their bodies might produce or be interpreted through) or been otherwise neutralised or silenced (via arrest, institutionalisation, or social censure).[13] In the absence of the subjects themselves it is impossible to determine on their behalf what experiences or identities they would have preferred to be associated with – and indeed many of these cases involved what Marjorie Garber calls a ‘crisis of category’, wherein the transgression involved not just the misalignment of categories of sexuality or gender but a failure of category to account at all for the experiences of the transgressors.[14]
The case of Harry Crawford/Eugenia Falleni provides a good example of this. Over the years scholars have variously interpreted Crawford as (what we would now understand as) a cisgender[15] lesbian cross-dressing purely out of economic interest, or as part of an attempt to pursue lesbian relationships with women, or even to pursue a lesbian identity that for some reason is understood to be rooted deeply in gender while also not having anything to do with gender; that is, a gendered lesbian identity that is not a transgender identity. Other studies of Crawford’s life and character have assumed entirely the opposite: that Crawford might be neatly slotted into a prescient category of early transgender man, decades before the term arose to prominence, subsuming any potential lesbian identification in favour of a straight (trans)masculine identity. Interestingly even the latter arguments retain the habit of defaulting to the name Eugenia Falleni, the name that appeared on legal documentation and in the newspapers of the time, rather than the name that the subject chose to live under for twenty years: Harry Crawford. Rather than sacrifice either a queer feminine subject position or a potential transgender, genderqueer, or gender-non-conforming subject position, I think it is possibly to include and allow a multiplicity of potentialities in which every relevant identity category may still bear significance. By embracing the crisis of category rather than attempting to resolve it, I believe a more effective and ethical type of history can be written; one that is fluid and subject to criticism, self-reflection, and recreation. Such a history must consider multiple axes of experience and identity and the ways in which these might interact with, influence, or contradict each other, so that cases of gender transgression become not just about gender but about transgenderism, queerness, femininity, violence, bodies, medicine, ability and disability, class, diaspora, race, and Indigeneity.
Although this methodology risks broadening the field of study to the point of incoherency, it can also result in wholly new insights and perspectives brought about by the introduction of discourses, symbologies, and points of contact that might otherwisehave existed concurrently but not in conversation with these subjects and subjectivities. Terry Castle’s ‘apparitional lesbian’born out of queer theory and history may thus be introduced to Judith Fetterley’s theory of ‘resistant reading’ born out of feminism and literary criticism, pointing to a feminist metatextual stance that seeks not to actually rewrite literary works so that they reflect a feminist reality but to ‘accurately name the reality they do reflect and so change literary criticism from a closed conversation to an active dialogue’, representing in essence ‘the discovery/recovery of a voice’.[16]This, too, is deeply relevant to a study of gender transgression, since it is usually necessary to ‘read against the grain’ of hostile sources in order to unearth the various possibilities of subjectivitycontained within them.
The resistant apparitions born of Castle and Fetterley may then coincide with Adam Lifshey’s ‘spectral resistance’, in which he contradicts major currents of transatlantic theory by positing ‘America’ not as a country but as a foundational myth haunted by the lingering manifestations of dead and disappeared indigenous peoples.[17] The‘indigenous absences’ become paradoxically present simply by the fact of their existence, and by the gaps and outlines that they leave in the fabric of society.[18] Lifshey’s goal, he says, is ‘not to incorporate the unincorporated but to examine the contestatory and diverse possibilities of their bodilessness in the first place’.[19] Lifshey’s absently present indigenous ghosts are part of a larger narrative of what Simone Bignall calls ‘the negative aboriginal state’, that is, a ‘colonial association of indigenous nature with generalised lack or negativity’, enabled in Australia by the legal framework of terra nullius (‘no man’s land’) and its relation civil nullius: a conception of Indigenous Australians as non-people lacking both civilisation and selfhood.[20]Civil nullius in turn allows the ‘negative aboriginal state’ to extend also to ‘other modes of negativity, such as inferiority, degeneracy and deficiency’, resulting in a legal project that systematically and simultaneously invisibilises and also stigmatises Indigenous Australians.[21] This, of course, is the same legal project that suppresses instances of gender transgression, either by punishing the offender or reconstituting their offence into a coherent framework in which it is rendered harmless (and hopeless).Although literary and indigenous theory may seem only tangentially relevant, it is incredibly important to analyse gender transgression not in a vacuum but in a context of interwoven power dynamics and coinciding theories of stigmatisation and rationalisation. The racialised media representations of Harry Crawford were used to connect particular forms of disallowed embodiment, just as the fears and anxieties around gender transgression were used to further criminalise and control Indigenous communities (e.g. by feeding into concerns about miscegenation). By considering various invisible agents alongside each other, and by looking at nineteenth century law and medicine as multiplicatory bodies enacting power along many routes simultaneously, a more nuanced picture of policed gender, gendered society, and societal policing begins to emerge.
The moment of discomfort or confusion created by the transgression of norms is a key point of insight towards the construction of personal and public gender dynamics and their various socio-cultural implications.The reactions to incidents of gender transgression in the realm of the law as well as in the realm of popular opinion varied widely depending upon the specific matters of each case, and often largely dictated by the length of the deception and the direction in which the person was crossing gender categories (that is, whether they were assigned male and transgressing into a feminine category, or assigned female and transgressing into a masculine category). Understandable and even allowable motives could be provided for acts of gender transgressionunder certain specific conditions. Usually this meant that the transgression was temporary with some sort of coherent and morally justifiable motive, and without arousing suspicions of ‘same-sex’ attraction or activity. The particular set of conditions that could render a transgression non-transgressive were determined by factors such as race, class, immigrant status, and assigned gender, and the process of keeping within acceptable boundaries often involved a delicate balancing act and the employment of particular legitimising narratives.
Some of the common explanations or justifications were shared by several categories, sometimes paradoxically. Gender transgression as a joke or prank was a frequent refrain, as was gender transgression in the theatre or as a spectacle (especially on the part of AMAB transgressors).A person ‘posing as a schoolboy’ in 1928 explained under police interrogation that they were ‘play[ing] a joke upon her friends… to prove how easily people could be perceived in this way’, after which they were released without charge.[22]An article about Tiki Carpenter, a somewhat famous WW1 ‘female impersonator’, insisted that not all of these performers were ‘homosexualists’, that ‘some are not even effeminate’, explaining away the occurrence of ‘men with female traits’ as part of an ‘artistic temperament’.[23] Although the article states candidly that ‘there is no doubt whatever that lots of them certainly should have been born girls’ and that they were ‘not like all men’, it quickly clarifies that ‘one must not think for one moment that Tiki makes up for anything more than amusement and gain. It is both his hobby and his living’.[24]Gender transgression as an avenue to bettering one’s circumstances was also a common excuse, and paradoxically both AFAB and AMAB people could claim that they were crossing gender categories in order to access work or financial security (generally the occupations cited would be whatever occupation the person happened to already hold, although this explanation was used even if the subject held no steady employment). Occupational category-crossing was especially sympathised with in circumstances where the subject could claim the necessity of supporting family members such as parents, children, or spouses. Harry Crawford’s choice of masculine presentation was often assumed to have been connected to employment despite the fact that they held sporadic jobs throughout their lifetime: newspapers described Crawford as having ‘assumed masculine attire, and attained employment as a man’ as if the connection between the attire and the employment was both obvious and enduring.[25] Newspapers in 1929 reported on ‘the astounding adventures of a young woman, who has dressed and worked and acted, first as a boy and then as a man, for 20 years’, describing the subject William Smith as a ‘romantic man-woman’ and a ‘brave battler’.[26]