Thomas/in Hall: Subverting the Gender Binary in Colonial Virginia

Among Virginia’s earliest records is a court case describing the first known intersex person in British North America. In 1629, a servant known as Thomas Hall was taken before the Quarter Court at Jamestown. Hall’s ambiguous gender had become a matter of contention; the court minutes record the attempts of Hall’s masters, neighbors, and the colonial government to determine their “true” sex. In the process of hearing the case, the court inadvertently created a remarkable document that preserves the voice of a gender nonconforming, intersex person in 1620s Virginia.

“Medical experts estimate that one of every two thousand people is born with genital anomalies,” Elizabeth Reis writes in her introduction to Bodies in Doubt: An American History of Intersex (2009). “Our gendered world forces us to put all people into one of two categories when, in fact, as the biologist Anne Fausto-Sterling has suggested, we need to consider the less frequent middle spaces as natural, although ‘statistically unusual.’”¹ The most surprising element of Hall’s story is not that intersex people existed in colonial Virginia, but that details of Hall’s life were preserved in the historical record.

The original minutes of the Hall case are not held at the Library of Virginia; in fact, they only survived through a series of chance events, few of which can be chalked up to the diligence of archivists. Most records of the colonial Quarter Court, later known as the General Court, were destroyed in the 1865 Richmond Evacuation Fire. However, the oldest Quarter Court minutes had long before left official custody, reappearing in Thomas Jefferson’s library in the early nineteenth century. Henry Read McIlwaine, who served as Virginia state librarian in the early twentieth century, believed that Jefferson had purchased the Quarter Court minutes from the estate of Peyton Randolph after Randolph’s death in 1775.² If this is true, then one of the Randolphs, a prominent Virginia family, appears to have borrowed the minutes from the colonial government and never bothered to return them.

After a long period of neglect, the Quarter Court minutes were in bad shape. McIlwaine writes that “a great many of the leaves had also been lost, and a great many more had been sadly mutilated.”³ Jefferson sold the minutes to the Library of Congress in 1815, allowing them to be conserved.⁴ Even after conservation, parts of the text were obscured by damage, and numerous pages, including all three pages of the Hall case, were arranged in the wrong order.

Transcriptions of the Quarter Court minutes were first published in the Virginia Magazine of History and Biography between 1911 and 1923. The Hall case appeared in the July 1923 issue, but the magazine censored the transcription, replacing key paragraphs with the words “[Various unprintable details are omitted here].”⁵ The following year, Henry Read McIlwaine determined these details were, in fact, printable, and published the full, unexpurgated text in Minutes of the Council and General Court of Colonial Virginia (1924).

Despite McIlwaine making Hall’s story widely available to scholars, the case was conspicuously ignored for the next fifty years. Only in 1978 did the Virginia Magazine of History and Biography return to the Hall case, publishing Alden T. Vaughan’s short article, “The Sad Case of Thomas(ine) Hall.”⁶ In 2014, Vaughan described his motivation for writing the article: “I had no true theory in mind, only a sense that something profoundly disturbing, and presumably rare, had happened to this young person and that his/her story should be told.”⁷

Vaughan’s article was sparsely cited in the following decade; two of the three references I located in scholarly publications were factually inaccurate or contained derisive comments about Hall. Still, that VMHB chose to publish Vaughan’s article at all is noteworthy. This was the same era that saw the South Caroliniana Library’s attempts to suppress the publication of letters documenting same-sex sexuality in the nineteenth-century American South.⁸ Vaughan’s emphasis on gender rather than sexuality (and, perhaps, his framing of Hall as a “sad case”) may have made his scholarship more palatable than the South Carolina letters to the mainstream history establishment.

Beginning in 1990, the Hall court case was taken up more widely, serving as a case study for historians of gender, medicine, and law. Here, I aim to return to the impulse of Vaughan’s article and tell Hall’s story for its own sake—and, in doing so, honor a transgressive history that deserves its place in Virginia memory.

We know quite a bit about Hall’s early life from the testimony recorded in the Quarter Court minutes. Hall gave their birth name as “Thomasine Hall” and said that they were born “at or neere” Newcastle upon Tyne in northeast England.⁹ On January 2, 1603/04, a “Thomasin Hall” was baptized at All Saints Church in Newcastle, the daughter of Raph Hall, a “colyer,” or someone who worked with coal.¹⁰

Hall spent their childhood in Newcastle and was raised female. As an adult, Hall chose to “perform his identity serially as either male or female,” as Kathleen Brown puts it.¹¹ As we have only partial knowledge of how Hall understood their own gender, I will use “they/them” pronouns and follow Julie Richter in referring to them as “Thomas/in Hall.”¹²

At age twelve, Hall was sent by their mother to live in London with an aunt. Julie Richter summarizes this period of their life as one during which they would have learned skills associated with female labor. As a young person, Hall’s assigned gender would determine the types of skilled labor they learned to perform, as well as their behavior, dress, and legal rights and responsibilities.

In 1625, Hall’s life was disrupted by Britain’s involvement in ongoing European wars. A brother of Hall was pressed into service in a failed naval expedition against Cádiz, Spain. Hall decided to follow their brother into military service. The Quarter Court recorded that Hall “cut of his heire and Changed his apparell into the fashion of man” before participating in the (similarly failed) 1627 Siege of Saint-Martin-de-Ré in France. ¹³

It’s unclear what compelled Hall to leave England, although their brother’s departure seems to have been a primary factor. Certainly they don’t seem to have been daunted by the novelty and danger that accompanied their travels to the Continent and Virginia. We can hazard a guess that Hall’s intersex condition made it easier for them to change their gender presentation. Based on descriptions of Hall’s anatomy that appear in the court minutes, Mary Beth Norton concludes that Hall “probably fell into that category of human beings who appear female in infancy but at puberty develop what seem to be male genitalia.”¹⁴

After returning from war, Hall settled in the English port town of Plymouth, where “hee changed himselfe into woemans apparell and made bone lace and did other worke with his needle.”¹⁵

Mary Beth Norton notes that “Plymouth was one of the major points of embarkation for the American colonies,” and, indeed, after a short time in Plymouth, Hall decided to emigrate to Virginia, likely as an indentured servant.¹⁶ When Hall left, they chose to do so in “the habit of a man.”¹⁷

Kathryn Wichelns describes Thomas/in Hall as “tactically and fluidly transgender,” altering their gender presentation depending on their circumstances.¹⁸ We can’t know the precise factors that shaped Hall’s gender presentation, but what’s clear is that Hall made a deliberate series of choices about how to present themselves. European people were broadly aware that intersex people existed, but this knowledge did not mean that gender nonconforming behavior was condoned. Maayan Sudai cites the thirteenth-century English treatise Bracton, which stated that “a hermaphrodite is classed with male or female according to the predominance of the sexual organs.”¹⁹ Even if a person’s sex was ambiguous, their gender presentation was expected to conform to a single, stable binary gender.

In Virginia, Hall found themselves in a young colony whose history was defined by political tumult, marked social inequality, and violent conflict with Indigenous peoples. Hall became a servant to two men, John Tyos and Robert Eyres, who resided at Treasurer’s Plantation. At some point after Hall’s arrival, they resumed dressing as a woman, and Tyos told neighbors he believed his servant was female. Julie Richter has suggested that Hall adopted female dress to fulfill a need for female labor in the new colony (perhaps avoiding work in the tobacco fields).²⁰ Other historians have interpreted Hall’s obscure statement that they dressed as a woman “to gett a bitt for my Catt” as a reference to sex work.²¹

Regardless of Hall’s motivations, community members began to question their gender. Rumors circulated that Hall was sexually involved with a female servant known as “great Besse,” which Hall seems to have denied.²² The accusation likely fueled scrutiny of Hall’s gender, as the crime of “fornication” only criminalized intimacy between men and women—sexual relationships between women were not subject to prosecution under English common law.

When questioned by landowner Nathaniel Basse, Hall was clear about who they were, explaining that “hee was both man and woeman.”²³ This remarkable statement implies that Hall understood themselves to defy binary sex categories. Hall’s bold self-identification and gender performances stood in sharp contrast with their class status, which was one of profound disempowerment. Indentured servants existed in temporary bondage to their masters. Work conditions in Virginia made matters worse, as Warren M. Billings describes: “Planters could be brutal, and, given Virginia’s shortage of women, they sometimes subjected their maidservants to sexual abuse. Even under the best of conditions, tobacco farming was an arduous routine[…] Loneliness broke the spirit, work weakened the body, disease contributed to ill health, and many servants died before they fulfilled their indentures.”²⁴ Hall’s gender presentation didn’t offer an escape from servitude, but it did allow them to exercise limited control over the types of labor they engaged in.

Hall’s gender continued to be disputed, both in the households of Tyos and Eyres and afterward, when their indenture was transferred to John Atkins of Warrosquyoake.²⁵ On four separate occasions in 1628/9, Hall’s genitals were inspected in order to determine their sex. These searches were primarily conducted by groups of women; women were often deputized to search the bodies of other women to gather evidence for courts. On one occasion, two men encountered Hall on their own and “threw the said Hall on his backe” in order to conduct a search.²⁶

We can’t know how Hall felt about this period of verbal and physical scrutiny. Mary Beth Norton notes that “the absence of a sense of personal privacy” would have shaped Hall’s experiences of the searches.²⁷ Nevertheless, Hall may have felt worried, annoyed, or distressed, particularly as their gender self-determination was being threatened. We can acknowledge that some or all of these examinations would be viewed as assault in a modern context, even if they were sanctioned by legal and social custom at the time.

Based on physical evidence, Hall’s female neighbors believed that they were a man, but local men were divided. Hall was first ordered by Nathaniel Basse to dress as a woman, then ordered by their master, John Atkins, to dress as a man. After the final search of Hall’s body, Atkins told Basse “that the said Hall was founde to bee a man and desired that hee might be punished for his abuse.” ²⁸ Hall’s “abuse” may have been the crime of fornication, a transgressive gender presentation, or both; at any rate, Atkins’ complaint seems to have resulted in Hall’s trial.

On March 25, 1629, John Atkins and another man, Francis England, gave depositions concerning Thomas/in Hall before acting Royal Governor John Pott. Hall appeared before the Quarter Court on April 8 to receive judgment. The Quarter Court consisted of the Governor and the Governor’s Council. The court minutes do not document whether Hall was being charged with a specific crime, nor do they describe the process by which a verdict was determined.

Hall’s trial was shaped by its colonial setting. English common law was in force in Virginia, but Oliver Chitwood’s 1926 book Justice in Colonial Virginia notes that “a certain amount of elasticity had to be given to the laws of England before they could be adapted to the differing conditions in Virginia. Besides, a legal education was not a requisite qualification for membership in the council, and so cases must sometimes have arisen in which the judges did not know how to apply the common law.”²⁹

All of this goes some way toward explaining the unusual outcome of Hall’s trial. Rather than assigning Hall a binary gender, the minutes contain the following statement: “It shall bee published in the plantation where the said Hall lyveth that hee is a man and a woeman.” The court went on to order “that hee shall goe Clothed in mans apparell, only his head to bee attired in a Coyfe and Croscloth wth an Apron before him.”³⁰ Hall was determined to be both male and female and instructed to dress in the clothing of both genders.

The court’s defiance of the gender binary flew in the face of the legal, social, and religious customs of the time. Elizabeth Reis reads its decision as a new form of social control: she writes that the court “chose the sanction, I believe, to preclude further acts of deception, to mark the offender, to warn others against similar abomination, and to reduce the possibility of Hall’s sexual coupling.”³¹ That said, the defiance of legal precedence may not have been intentional.

Sudai suggests that “Pott simply was not aware of the rule that required classifying hermaphrodites according to their most ‘dominant’ sex.”³²

Hall was ordered to make subsequent court appearances in order to ensure that they were following the ruling, but after 1629, they disappear from the minutes, perhaps in part due to record loss. Reis comments, “We can only hope that s/he worked off the indenture, changed name and location, eschewed the farcical costume, and resumed life as whichever gender(s) s/he preferred.”³³

In her 2014 article about Hall, Kathryn Wichelns warns against anachronistic readings of Hall’s life. “[I]nsufficient critical distance” and a desire to make Hall’s story “intelligible,” she argues, robs Hall of their complexity.³⁴ When we talk about Hall, Wicheln entreats us to choose our words carefully.

There’s so much we can’t know about Thomas/in Hall: their understanding of gender and the gendered world they lived in, and why they chose different gender presentations at different periods of their life. I hope we can find meaning in Hall’s story without simplifying it beyond recognition. Thomas/in Hall is evidence that there have always been people who have actively defied the gender binary. Their life serves as a potent example of how identity operated in the novel social landscape of colonial Virginia, where their quiet rebellion seems to have provoked those in power to invent new, if idiosyncratic, methods of social control.

In this light, Thomas/in’s story strikes me as a particularly Virginian story, an early example of a community “negotiating a new set of colonial meanings for social distinctions,” as Kathleen Brown puts it. ³⁵ After Hall disappears from the historical record, these uneasy negotiations would continue to shape the contours of gender, race, and class in the Old Dominion.