Some Church Documents #2: 1975 Nullity Case Involving a "Transsexual"

The document and my discussion are at the bottom, if you want to skip down and read the darn thing. Otherwise, I have some introductory comments on the Catholic Church and gender issues.

Aw yiss, articles obscure enough you still have to find them in books!

For some years, I have tried to determine what the Catholic Church officially believes about people who identify as transsexual. This is not as easy as you might think.

Now, Catholicism has a great deal to say about specific sexual acts. To wit, unless it is a sexual act act that is open to life, performed freely in a loving, male-female marriage, the Catholic Church is Not For It. Several pages of the Catechism are devoted to going through common sex acts and gently, politely identifying them as gravely evil and harmful to all participants. Masturbation: bad. Fornication: bad. Prostitution: bad. Adultery: bad. Contraception: bad. And so forth. A little ways above this section, there's a discussion of the importance of distinct maleness and femaleness, their complementarity, their role in driving humans to communion with one another, and how they figure in God's overall plan for humanity.

This, then, is where we find the Catechism's condemnation of all homosexual acts, although the authors take pains to clarify that the Church does not condemn homosexual persons. Gay and lesbian Catholics cannot, after all, be "open to life" in sex acts with members of the same sex. Even if they could, these acts would not conform to the Church's understanding of complementarity between the sexes. Since all Catholics, including gay and lesbian Catholics, are called to chastity, this pretty clearly rules out sexual gratification of any kind within a same-sex relationship. (The Catechism notoriously fails to suggest what positive vocations gay and lesbian Catholics might be called to, but that's another story.)

But being transsexual is not at all the same as being gay. Some people experience an interior sensation that their apparent physical sex is incorrect. People who appear to be males (and even have male genitalia) believe themselves to be truly female, and vice versa.  Often, they say they are “trapped in” or were “born into” the “wrong body.” We call these people "transsexuals."

(To be clear: I am talking in this post specifically about transsexuals, those who desire to transform their bodies to reflect their perceived sex. There is a broader movement of "trans*" identities, which includes identification such as "bigender," "agender," and "genderqueer." I confess I cannot make heads or tails of these identities, and suspect that those using them are using a definition of "gender" so subjective as to be either trivial or meaningless or both. Perhaps this subjectivity is considered a justified reaction against socially-imposed gender roles, which are real and often oppressive. In any event, this post is not about trans* identities broadly. I am aware that "transsexual" is now seen as somewhat archaic, but I am unaware of any more modern term that specifically identifies this particular subset of trans* persons)

In many ways, the transsexual experience runs directly counter to the prevailing narrative of the LGBT movement. Where gays, lesbians, and many trans* individuals insist that gender doesn't matter at all, because "love is love" and identity is completely plastic, trans* people experience deep, profound alienation from their bodies, because they gender matters more than practically anything else. Their dysphoria is not remotely plastic, much to their regret. Our culture, led by the LGB movement at large, has worked very hard to imagine that all gender differences are the result of social conditioning and kyriarchy, a kind of gender nominalism that finds its apex in the same-sex marriage movement. But transsexual people affirm a kind of gender realism that has become almost alien to our culture--at least, outside of the Catholic Church.

And, sure enough, the Catechism has exactly nothing to say about transsexual persons. There is not a word about them. (No, CCC 2297 doesn't count, but good try.) Nor does any teaching directly addressing them readily appear anywhere in Church history. Certainly, the Catholic Church affirms the beauty of maleness and femaleness, as does the Catechism. But the Catechism does not clearly define "maleness" or "femaleness" as being rooted in chromosomes, genitals, psychology, hormones, or something else.

So might it be possible that there are people with female souls born into bodies that, by dint of a birth defect, develop as male bodies? We know birth defects are real, and sometimes even make gender ambiguous (in the case of intersex people). Is it possible that transsexuals' tremendous desire to transition is well-founded? That it is based on a justified desire to correct a serious physical disorder? That the transsexual experience actually affirms what the Church teaches about the ontological reality of gender?

For various reasons, I personally think that the answer to all those questions is almost certainly "no." I shan't explain those reasons here, however, because my opinion, no matter how well-considered, is not the teaching of the Catholic Church! Even if I think those notions are wrongheaded, one can still hold them and be a faithful Catholic! So what has the Church said?

For most of my life, there have been two well-known documents regarding Catholic teaching on transsexuality, only one of which likely exists.

The first document is a 1997 article by Fr. Urbano Navarrete, S.J., entitled "Transsexuality and the Canonical Order." It deals with various questions relating to how a transsexual person may (or may not) participate in certain strongly gendered parts of Church life, such as marriage, the ordained priesthood, and vowed religious life. A translation was online at some point, but seems to be offline now. I've restored it just now.

The second document is an alleged 2002 document sent secretly by the Vatican to the bishops of the world. It was reported in the Catholic News Service by Mr. John Norton. Purportedly, this document stated that sex-change operations do not change a person's "true" gender and should not lead to the alteration of baptismal records, etc. Furthermore, this document allegedly stated that sex-change surgeries "could be morally acceptable in certain extreme cases if a medical probability exists that it will 'cure' the patient's internal turmoil."

However, with all due respect to Mr. Norton, I do not believe this document exists. I have searched high and low for it for over a decade. I have had a friend poke around in the Vatican Archives for it. I have reached out to people alleged to have knowledge of it, only to get flat denials that they've ever heard of it. Its non-existence, however, has not stopped the sub secretum document from having a profound effect on Catholic discussions of transsexuality. In the absence of real teaching, what else was there?

Just last week, Catholic thinking on gender issues was updated by a new document, "Male and Female He Created Them," released by a minor Vatican dicastery. (It is curiously dated February 2019, even though its release date was June 10th.) Tuned-in Catholics probably thought this post was a timely reaction to that new document! But, joke's on you: I haven't had a chance to read "Male and Female" yet, so I offer no opinions on it. I'll only note that, while we should welcome all new Vatican contributions to this conversation, the new document lacks the imprimatur of the Pope or even the Holy Office, still less the ordinary and universal magisterium. No matter what it says, there will be plenty of room for dissent, and plenty of people (on both sides) fully prepared to dissent from it.

A day after "Male and Female," Jennifer Haselberger pointed out yet another document.

Haselberger is a canon lawyer who made a name for herself trying to evangelize the local post-Catholic women's college. She fought to bring the sacraments back to campus, placed Marian statues in surprising places, and so forth. She eventually became Chancellor for Canonical Affairs at the Archdiocese, where she learned about serious scandals which she heroically exposed at great cost to her career. She now works at the Robbins Collection at Berkeley. (Full disclosure: two decades ago, Haselberger was a good friend of mine, although, to my regret, I don't believe we've spoken in person in over fifteen years.)

Haselberger found "Male and Female He Created Them" disappointing. She pointed out, in contrast, a document I've never heard mentioned in any discussion of the issue anywhere: an April 14, 1975 decision of the Roman Rota in a marriage nullity case. I couldn't find a copy online.

So, of course, I headed down to the library today, found the decision, and made a copy. Here it is. Discussion below.

RomanRota_TransvestitesTran... by on Scribd

The Roman Rota, as I understand it, is the highest appellate court in the Catholic Church. (The Apostolic Signatura is the court of final appeal on procedural matters only.) Much like the Supreme Court, it rehears difficult cases decided in Church courts around the world and decides whether the original decisions were correct or not. (Did you know the Catholic Church has a fully functioning legal system, the oldest in the world?) The vast majority of cases in the Catholic legal system are petitions for marriage nullity.

Christ declared that sacramental marriage is indissoluble (in nearly all circumstances). Once you've validly married somebody, you're married for life. However, in order to count as a valid marriage, certain conditions have to be met: at the time of the wedding, both husband and wife must be capable of freely entering marriage. They cannot be under duress, cannot be high on drugs, cannot be already married to somebody else, must genuinely intend to enter a faithful and fertile marriage, and must meet various other requirements. If you later discover that you or your spouse didn't meet those requirement on your wedding day, you can ask the Church to investigate whether your marriage was ever valid. If not, the Church will declare the marriage annulled. The marriage is not dissolved; it is recognized to have never existed in the first place. (This frees both parties to marry somebody else.)

In this particular 1975 case, a woman known to us only as M. married a man, R., in 1946. Soon after their wedding, R. came out to M. as trans. R felt that R's true identity was female. This first manifested as transvestism, but proved deeper than that. They had several children, but struggled. In 1971, R divorced M in civil court. In 1972, M asked the Church to consider grounds for an annulment on the basis that R--being transsexual--was incapable of giving matrimonial consent, performing the duties of marriage, or, indeed, of being married to M at all, given R's asserted identity as a female.

Ms. Haselberger notes several passages wherein the tribunal allows that, under Roman law (which is the basis of Catholic canon law), there are various ways in which R's self-identification could be and perhaps ought to be respected. For example, on page 759, the Rota clearly suggests that there would be no problem respecting R's sexual self-identification in matters of "ordering one's purely external or social life," so that it would, for example, be fine for R to avail himself "of wearing men's or women's clothing, of giving testimony in instruments, of the right to determine an heir."

The Rota makes no explicit mention of the most immediate practical difficulty facing contemporary Catholics who have trans* friends or coworkers: the question of whether it is morally licit to use a transsexual's preferred name and/or pronouns. However, their logic seems to push toward the conclusion that the use of preferred pronouns would be acceptable, perhaps even to be encouraged.

On the other hand, the Rota does ultimately rule in favor of the marriage. They rule that R is, ontologically, a male; that he (this is the pronoun the Rota chooses) validly contracted marriage to M; that his desire to be a female did not prevent him from consenting as the male partner; that he was (and continued to be) capable of participating in the sexual act as a male; and that R remains married to M, in a male-female conjugal union, until death do them part. This is hardly the ruling transsexual Catholics would have hoped for.

The decisions of the Roman Rota, especially in private cases like this one, are not considered official magisterial teaching and do not bind the consciences of any Catholics except the parties before the court. However, canon lawyers are forced to reason through complicated issues of law and doctrine very carefully in order to reach their decisions, and reading through that is often enlightening. Moreover, the Rota's precedents matter a great deal in how future cases will be decided. So this document is by no means infallible, nor do I believe it is it even considered "authoritative" in the technical, Catholic, magisterial sense of the word.

But it's nevertheless an instructive look at how the Vatican has reasoned through issues of transsexuality in the past, and, in the absence of more authoritative teaching, I think it's well worth taking a look at it.

Thanks to Ms. Haselberger for pointing it out.