Legalize It: Gender and Sexuality in Ancient Law

In the Prokheiros Nomos, a Byzantine legal compilation from 907 CE written to aid judges in their work, we read a law that addresses male/male sexual behavior: “The aselgeis ones, both the one doing it and the one getting it, let them pay the penalty by the sword, unless the one having gotten it perhaps might be less than 12 years old. For in that instance his lack of age sets him free from that sort of punishment” (39.73; Zepos and Zepos 1931, 225-226). The first things that may attract our attention now are that the law is concerned with anal intercourse and that the penalty is death.

Although there are no explicit provisions against male-to-female crossdressing in codified Roman law or jurisprudence, men dressing like women nevertheless occupied the legal imagination. The Digests (34.2.33), for instance, ponder whether the clothes worn by such men should legally be considered “men’s garments” or “women’s garments.” Declaimers, too, assigned their students cases involving crossdressing. The Minor Declamations (282) preserve a prompt for a declamation about a man who saves his sister from the clutches of a tyrant by putting on her clothes and slaying her captor.

“Whatever I tried to write, that was poetry” (Ov. Tr. 4.10.26). Besides stressing the choice of a literary life over a political and forensic career, Tristia 4.10 suggests that Ovid must have received some sort of legal training. Building on Ovid’s “autobiographical poem” (Fairweather 1987), recent scholarship has explored the presence of legal patterns within Ovid’s Metamorphoses and elegiac works (cf. Balsley 2010, 2011; Ziogas 2016, 2016a).

The adulescens Chaerea of Terence’s Eunuchus presents a unique blending of gender and sexual opposites. Over the course of the play, Chaerea disguises himself as a eunuch slave in order to gain access to a young girl in a prostitute’s home wherein he consequently rapes her, and when caught, negotiates a marriage for himself and his victim.

The pioneering study of K.J. Dover Greek Homosexuality has dominated the literature on same-sex relations in ancient Greece for the past 40 years. First, there are historical reasons for this dominance: this study was a bold undertaking at a time when no respectable academic would pick up this topic. Second, the success of Dover's model lies in the fact that it provided an elegant explanation for a puzzle.