Accidental Same-sex Marriage?

Photograph of a married couple believed by medical men to both be gonadally male.  Caption to the original reads: "A.S. [shown on the left], married for sixteen years, male hypospade. Error of sex."[1]

If a man has sexual intercourse with a male as one has sexual intercourse with a woman, the two of them have committed an abomination. They must be put to death; their blood guilt is on themselves. ~ Lev 20:13

Hypospadias is a condition where the urethra exits somewhere else on a man than his glans.  About 1/100 to 1/200 of men are hypospades. When the penis is small and the urethra exits at the base of the penis sometimes a baby can be misidentified as a girl. These misidentified hypospades can either be attracted to men, women, or both.

In Numbers 1:46 there are 603,550 Israelite men ready for the army.  About 3,017- 6,035 of them would have been hypospades. These would just be the ones correctly identified as male.  If Western Europeans were having trouble correctly identifying hypospades well into the 20th century, we can assume that those in the Ancient Near East also had trouble identifying them.

In ancient Israel, these pseudo-women risked breaking at least three Old Testament commandments.

•  Cross-dressing - A woman must not wear men’s clothing, nor should a man dress up in women’s clothing, for anyone who does this is offensive to the Lord your God. ~ Deuteronomy 22:5
• Same-sex male sex  ~ Leviticus 18:22, 20:13
• In Deuteronomy 22, a woman and presumably a pseudo-woman who did not bleed during first marital intercourse could be stoned at her/his fathers doorstep.  

A strict interpretation of the Law demands the deaths of both partners involved in a same-sex marriage with a hypospade.  However it is unclear if there would be mercy and it is doubtful that the Law was followed strictly.  Even in 19th century France and England, a minority of doctors did not have the heart to break up happily married pseudo-women and men.**

*It is also unclear what God regards as the correct sex.  For millennia, genitalia was really all they had to go on.  Then there were the gonads which largely reside inside the body.  Sex chromosomes were only discovered in 1905.  Perhaps God would regard a mother/priest/judge/father/doctor's best guess as the correct gender.

**It is not always clear what makes a woman and a man.  There are at least three criteria*** (genitalia, gonads, chromosomes)  and generally two out of three confirms a gender.  A hypospade has male gonads, XY chromosomes, but an ambiguous genitalia. However, this is just the person's sex.  Gender and sexuality can differentiate from the sex norm.  A hypospade can be identified as a female sex and can identify with the female gender.  This also does not factor in the sexuality and who the hypospade is attracted.

***Over 99% of people will have no conflict with their sex and their gender.  99% of people will have their genitalia, gonads, and chromosomes line up.  Most hypospades are correctly identified as the male sex.  About 95% of people will primarily desire someone of the opposite sex.

[1]Dreger, Alice Domurat Hermaphrodites and the Medical Invention of Sex (Cambridge: Harvard University Press, 1998) 121