A prominent member of the community, born as an Orthodox male, with a wife and several married and unmarried children, announces to his family and friends that he no longer can live as a man. He tells his community that he has felt all along to be a woman, and finds it unbearable to continue with this charade. He has begun hormonal and surgical treatments, and is now dressing like a woman.
His children, advisors, friends, are stupefied. Those who are a little more open-minded are telling him, “You are a reasonable, mature and learned man. OK you feel this way, but can't you wait at least until your youngest child gets married?” He says, “No, I cannot. It is way too painful. If I don't do this now, and come out of the closet, I feel I will kill myself.”
Aside from this true story, similar stories, especially amongst younger people, born males and born female teenagers, are declaring to their peers, to their schools, and to their parents, "I am not the gender that you think I am.”
Transgender concerns are being expressed by increasing numbers of young people today (Crincoli, 2015, p. 5). Even though biological causes such as chromosomal or hormonal abnormalities may account for some persons with Gender Dysphoria, it is unlikely to attribute the large numbers of people coming forward in recent times to mere biological phenomena. Psychologically, this is more akin to a mass social phenomenon, even a hysteria. That is not to say it is no less legitimate or felt as any less painful by those who are experiencing this syndrome. Every generation has certain constellations of emotional energy and anxiety, that culturally speaking, reach a tipping point. Each culture has its way of expressing it collective anxieties and psychological fears. For whatever the reasons, even if they are entirely subjective and emotional, the cultural construct becomes real. Consider for example the intensity of Anorexia Nervosa in the latter half of the 20th Century. While Anorexia probably always existed, the intensity and the feeling of being fat is arguably a unique product of a particular culture and time, that esteems being thin. This is not unique. For example, the hysterical paralysis that manifested itself in Freud’s Vienna and spurred Dr. Freud to develop his ideas about unconscious defenses, repression and expression of conflicts do not appear in our culture with the regularity that it did in his time (Freud, 2000). As another example, in the times of the Talmud, there was a strong and irrational fear about being accused of having a particular kind of deformity on the male organ, known as krus shafcha. Krus shafcha literally means a cut pipe, some kind of deformation of the urethra that leads to a dysfunction in the ability to properly urinate and ejaculate. In fact, this deformity would invalidate the person as a marriage partner, and also it was believed medically to make the person functionally infertile. Therefore, there was an intense hysteria about being accused of having this deformity. Pages of halakha were devoted to proper privy conduct in order to avoid being gossiped about that one had this deformity - and by implication his children were not his own, but mamzerim. (Bastard children conceived from an adulterous or incestuous relationship. See for example, Niddah 13a.) Though this fear used to be vividly felt, it is safe to say, that this fear is not an active concern in present-day Orthodox Jewish culture. Indeed, the Diagnostic and Statistical Manual of Mental Disorders V (American Psychiatric Association, 2013) has an extensive Appendix of culturally-based manifestations of mental illness. Thus, every generation and culture has its collective fears and anxieties, conscious and unconscious, and physical manifestations of them. And, once the anxiety reaches a tipping point, it develops into a cultural and social phenomenon. Therefore, for the purpose of our discussions it may be fair to say that gender dysphoria, though perhaps psychically subjective save for a minority hormonal and/or anatomical abnormalities, is still significant and real to those that experience it.
From a clinical perspective, there may be a similarity to Anorexia, as both conditions involve distorted body image, and perhaps as an unconscious defense against cultural and social expectations of sexuality and body form. However, in regard to Anorexia, the medical response is of course to attempt to mitigate and correct the body Dysphoria and beliefs about eating, and to quickly intervene in terms of diet and behavior due to the significant health dangers of starvation. Yet, Gender Dysphoria and transgender concerns are not treated in that manner at all. A doctor or therapist would likely help the child or adult, and family members, affirm and feel comfortable with these feelings - not to refute them (American Psychologist, 2015, pp. 832-864). While current research contends that hormonal and physical alterations may not be necessary for treating Gender Dysphoria in adolescents, as not all youth persist in Gender Dysphoria as they transition to adulthood (ibid, p. 841), the cultural narrative and most health care professionals are under the impression that this is an appropriate treatment (Crincoli, 2015, pp. 1-5 for a full discussion.) There is more research and education necessary, however it is the opinion of this author, that the over politicization of gender and sexuality in the culture at large has contributed to a reticence on the part of health care practitioners to question the gender narrative. No one wants to be perceived as bigoted or in some manner perpetuating a form of sexual discrimination. Furthermore, there is logic in the argument that gender itself, as opposed to biological sex characteristics, is not binary (American Psychologist, 2015). Rather, gender is a self-defined concept, and valid as such. To what extent halakha considers this to be valid will be part of this study.
Let us begin to examine the religious and social concerns that challenge transgender persons, and their family members. First, we must begin with some definitions:
A person who is transgender, is a person who perceives and deeply believes that his/her true gender identity is not in congruence with the physical sexual characteristics that he/she was born with. That is, they are chromosomally and hormonally of one sex, but feel to be of another gender. So a person born as a man, with the physical characteristics of a man, may feel himself to be truly a woman. Likewise, a woman born with the physical characteristics of a woman, my feel her/himself to truly be a man. Gender Dysphoria is an intense emotional discomfort with the current sex presentation of the body. Such individuals will seek to dress more in conformance with how they feel their true gender to be. This can require sometimes painful contortions and modes of dress, such as binding of breasts or external genitalia.
The emotional distress of Gender Dysphoria can be extreme. Individuals who do not get the support from family or friends to express themselves as they feel they are, can easily fall into depths of despair, and even commit suicide. Therefore, granting transgender persons the respect to dress as they feel in accordance with their gender, can be a matter of pikuach nefesh (halakhically relevant danger to life), and in the face of that, many halakhic concerns become less significant.
Transgender and Gender non-conforming persons, and persons with Gender Dysphoria may feel the need to take additional steps beyond change in mode of dress and identification. Some will want to take hormones which will help change their body and appearance, to be more in alignment with what they feel their gender to be. Others will seek surgical remedies, to alter their body in accordance with what they feel they really need to be. There are laws in place in many states, where individuals with the right psychological and medical documentation can have their birth certificates, driver's license, and passport changed to reflect their gender identity. There also some states where laws protect the rights of transgender individuals to use restrooms in accordance with their perceived gender. The New York State Public School system has particular rules and regulations to accommodate students who are transgender.
When grappling with transgender concerns, Orthodox Jews have specific halakhic challenges that are before an individual who wants to abide by Torah laws and yet sincerely feels him or herself to be transgender. A summary of the halakhic challenges are as follows:
These are the many challenging questions to confront, which as yet have not been adequately covered by poskim.
Determinants of Gender and Sex According to Jewish Law:
Physical hermaphroditism, that is the presence of actual anatomical ambiguities have been around as long as people have been around. These abnormalities can arise from fetal deformities, chromosomal abnormalities, hormonal disturbances as well as genetic problems with hormone receptors. In any case, the Talmud and rabbinic literature is replete with discussions of what is the halakhic status of what the Talmud calls an “Andro-Gynus” (a compound word taken from the Greek words “Man-Woman”. There is also a Jewish creation tradition that understands that the original Adam of creation to have been Hemaphroditic (Eruvin 18a). And, in fact, many ancient religions have hemaphroditic gods and mythological heroes (Eliade I:p.70, 165, II:156) seeming to indicate an unconscious sense that ultimate completeness or primordial perfection lies in the ability to incorporate male and female aspects, something that the eminent psychologist Carl Jung wrote about extensively. While this latter metaphysical point is not relevant to halakha, as per the dictum “we do not draw halakhic conclusions from aggadah (Jerusalem Talmud, Haggigah 1:8)”, it may provide psychological comfort for transgender persons in knowing there is some recognition of their status and value in a spiritual sense.
There are medical conditions, that cause persons to be born with either ambiguous genitalia, or genitalia of both sexes. Rabbi Alfred Cohen (Cohen, 1991) offers some of the medical background to better understand the halakhic ramifications:
“In order to understand the dimensions of the situation, a little medical knowledge is necessary: Both male and female genitalia come from the same original tissue [in the developing fetus], and at one time are identical. The only thing that causes these tissues to become male or female is the result of hormones and their actions [upon the developing tissue]... A hormone is defined as a substance that is made in one part of the body and influences another part. This requires that the substance is made correctly, it is secreted into the blood stream, or fluid surrounding cells properly, and that the tissue it is supposed to reach is able to recognize it and respond to it. This process is not dependent on the presence or absence of a Y chromosome. (The chromosome responsible for determining male sex)...On the forty-ninth day, a substance called sexual determining factor is made in embryos with a Y Chromosome (the gene that codes for this substance is found only on the Y Chromosome)... Sex is determined by having a Y Chromosome... However, it is possible to have a case where this substance is not made in a genetic male. The result would be a female in every sense of the word except perhaps fertility. (This is an EXTREMELY rare event). In a normal fetus, the testicles are the source of testosterone. However, there are situations where testosterone is made by another part of the body. This will transform a fetus with ovaries and a uterus [to develop some outward signs of masculinization of the genitals]... Depending on the amount of testosterone and how soon after fertilization it is present will determine how closely these genitals resemble male genitals... the reverse problem also exists. If the fetus cannot detect testosterone, then female genitals will develop despite the presence of testicles... It is also possible that one will see degrees of this problem... scientifically speaking, a true hermaphrodite is determined by looking at the tissue that is either an ovary, or a testicle, and finding that it is both. From a medical point of view, when a child is born with ambiguous genitalia, it is always possible to determine the genetic sex... Likewise, it is almost always possible to determine what the problem is (i.e., too much testosterone made, or if it is not being detected properly by its target tissues). [In other words, it is possible for a person to look like a female and yet to have XY chromosomes, indicating it is a male genetically. However, there are practical considerations - even determining the true genetic sex of the child does not always make it possible to correct the problem.]”
It is important to understand that the above descriptions apply to physical conditions with physical manifestations. Most people identifying as transgender today, have neither physical nor genetic indicators of any divergence from their physical sex, although some suggest that different levels of exposure to male or female hormones in utero are a part of a subtle influence on the brain. However, the reasonable position to take is that Gender Dysphoria is a psychological condition, and being transgender which may or may not accompany Gender Dysphoria, is a self-identification. Whether such conditions are considered pathological or merely a lifestyle choice is more a matter of social convention and construct.
Perhaps the first recorded discussion in history of sex reassignment surgery can be found stated in the name of the 11th Century Talmudic sage, Rabbi Chananel, and cited by Ibn Ezra (Leviticus 18:22). Interestingly, Rabbi Channanel rules that even post surgery (yes, he discusses surgery!), a transgender male to female would still be considered male, and therefore be in violation of the Biblical prohibition on male homosexuality. Ibn Ezra does not disagree with Rabbi Chananel’s halakhic formulation, instead he simply maintains that it is medically impossible and therefore halakhically and exegetically irrelevant. One may creatively play both the rulings of Ibn Ezra and Rabbi Chananel against each other to argue that since today’s surgical techniques are so far advanced as to make it absolutely possible and quite convincing in appearance, perhaps both Ibn Ezra and Rabbi Chananel would rule that today’s surgical transgenders would actually be considered as a new gender. This is a significant halakhic precedent for the notion that sex reassignement surgery is halakhically valid, as both Ibn Ezra and Rabbi Chananel are revered medieval rabbinic authorities.
According Crincoli (2015), in more modern times:
“Jewish communities have always had children with intersex conditions. For example, Ashkenazi (Eastern European) Jews have a high prevalence of congenital adrenal hyperplasia (CAH). In cases of ambiguous genitalia, the eight day time clock to assign sex creates pressure for Jewish medical ethicists, an elite group of rabbis who are recognized as authorities in halakha and trained in biology, medicine, or related sciences, to determine whether the infant should be treated as a boy or a girl under Jewish law. While delays are permitted, there is significant communal pressure to hold circumcision ceremonies at the proper time, and the delays are understood communally to indicate an illness or “problem” with the infant. All but one Orthodox rabbinic authority consider legal sex in Judaism to be fixed at birth. Even though some Jewish traditional texts discuss non-binary sexed people, modern Jewish law operates with a sex binary; the only options for religious sex status are male or female. Because traditional Jewish law or Catholicism, like many religious teachings, approach the legal category of sex from a positivist perspective, they rely on an essentialist perspective that there is an existing truth, and this truth includes the classification of an individual based on sex.
This can be contrasted with a realist perspective of legal sex, which would follow a social constructionist theory that sex status is not created until decision-makers impose or assign a sex status to an individual. Religious sex status is an innate phenomenon to be uncovered by the world, rather than something that is created or constructed through the act of assignment.
What makes a person male or female according to halakha? Orthodox rabbis do not agree. Traditionally, Jewish decision-makers had no other tools or knowledge but the ability to observe external genitalia. Over the past forty years, though, ‘opinion has been divided over whether to apply a genotypic or phenotypic formula’ to cases of intersexuality. In other words, some authorities have ruled that genetic makeup (i.e., the XY chromosome) should dictate whether an individual is male under halakha. Others have reached decisions based on the external appearance of the body. Though these decisions are often made privately, there are a few responsa that serve as source material of the competing views on sex status within halakha.”
Most interesting is that halakha works almost exclusively according to observable phenomena, and thus microscopic processes are generally not considered valid evidence in a most halakhic rulings (See Niddah 20b, and Sanhedrin 6b). Oddly, in regard to gender and sex, some rabbinic authorities use chromosomal and other internal biological markers.
Crincoli (2015) investigates this phenomenon:
“In identifying why the genotypic rationale emerged, Hillel Gray posits that the rabbis in the 1970s and 1980s viewed genetic composition as more innate and authentic to the individual than the external body. He has provided evidence that Orthodox authorities favoring the genotypic approach were aware of the connection between transsexuality and intersexuality and fearful of adopting a phenotypic approach that would serve as the basis for recognizing the validity in halakha of sex reassignment in trans people. Individuals with androgen insensitivity syndrome are treated according to phenotype in Orthodox communities, an inconsistency which suggests that the transphobic* motivation played a role in the pro-genotypic decisions.”
(* This comment by Crincoli, regarding transphobic motivations for a halakhic ruling done presumably in good faith is not the opinion of this author. It is possible though, that a fear of slippery slope and migdar milsa is operational.)
However, not all rabbinic decisors have taken this approach. Rabbi Eliezer Waldenberg, an extremely prolific 20th Century posek, wrote a number of responsa on this topic. It should be said that Rabbi Waldenberg enjoyed a unique status as a hermetic person, with creative and iconoclastic views, yet was accepted by almost all sects of Orthodoxy due to his apparent unimpeachable command of sources and outstanding personal piety (Arutz Sheva 2006). Crincoli (2015) notes:
“The one Orthodox rabbi who has publically validated the legal meaning of sex reassignment in halakha did rely on a phenotypic approach to understanding sex status. Rabbi Eliezer Yehuda Waldenberg, known as the Tzitz Eliezer, wrote two responsa relevant to the issue of sex reassignment. Waldenberg was a leading authority in Jewish medical ethics in the twentieth century and served as a judge on the Supreme Rabbinical Court in Jerusalem. The first responsum deals with organ transplants and raises the hypothetical case of “significant/organic alterations of the body, such as a person who changes from male to female, or vice versa” through a rare surgery that “is done in special cases.”
Waldenberg discusses two outcomes in halakha concerning this “woman who has many signs of being a man which are apparent to the visual sense” and, therefore, “is truly a man.” First, the man does not need a writ of divorce from a husband (no longer being the wife of a man). Apparently, he is halakhically a woman, and the marriage is automatically dissolved. Second, this man would say a morning blessing praising God “who has changed me into a man,” as opposed to the blessing either cis-men recite (“who has not made me a woman”) or that cis-women replace in prayer (“who made me according to his will”). Each of these rulings is premised on the hypothetical trans man having a male sex status within halakha.
A doctor read the first responsum and sent Rabbi Waldenberg a letter asking about a case in the hospital where he worked. The doctor describes a baby who was born with mostly female appearing genitals—labia and what appeared to be a clitoris. Yet the baby had a single testicle in one of the labia. Genetic testing determined that the baby had XY chromosomes. Invasive testing found no male organs inside the body. This suggests the infant had an androgen insensitivity syndrome. The doctor wanted to know if halakha permitted him to surgically alter an XY male into a functional female, and if it was permissible to remove the singular testicle, in light of the Biblical prohibition against castration. In the responsum answering the doctor’s questions, Rabbi Waldenberg announced that halakha only focused on external organs that can be seen by the naked eye. So the internal organs, or lack thereof, was irrelevant. Since the organs appeared female, the baby should be treated as a girl by Jewish law. The combination of these responsa creates a clear, minority opinion in halakha that phenotype is determinant, not genotype, and the act of changing external organs has the legal effect of changing sex status in halakha.”
Even so, these responsa discuss ex post-facto determinations and dispensations, however should not be construed as rulings that permit such kinds of surgeries or alterations by an otherwise anatomically normal person who merely identifies as a different gender. Crincoli (ibid, pp. 146-147) notes this:
“I should note here that there is a difference between permitting the act of transition (or, more accurately, acts of transition) and recognition of a change in sex status. Waldenberg is not specifically permitting (medical) transition, so there is no official Orthodox authority for a trans person to do so. A full discussion of the prohibitions in halakha on medical treatments or any other gender affirming act is beyond the scope of my remarks.”
Indeed, making anatomical changes falls under several possible prohibitions including mutilation or removing genitals, see (Leviticus 22:24 and Deuteronomy 23:22, as well as Talmud Shabbos 110b). In addition, perhaps even administration of hormones without surgery may be forbidden, as in the publication Hama'or (Kislev-Tevet 5733), Rabbi Amsel suggests that even administering female hormones to a male may be forbidden, under the prohibition of a man wearing women's garments.
However, perhaps one can argue that if the Gender Dysphoria presents a life-threatening degree of emotional distress, a rationale could be made to supercede the prohibitions. Indeed, research shows a significantly higher suicide rate amongst those identifying as transgender (Virupaksha, H. G., Muralidhar, D., & Ramakrishna, J. 2016).
Indeed, the Talmud absolutely recognizes that emotional distress can be so intense as to be considered life-threatening, in the famous case of the love-sick man (Sanhedrin 75a.) Though in that case, the rabbis did not allow the person a dispensation, that is because they ruled it to be a sin of adulterous nature for which one must martyr himself for, or that it would lead to a general denigration and disrespect of modesty customs. While clearly, the former consideration bears no relevance on our situation, some might suggest that the latter consideration may indeed be a reason for also prohibiting a person to do this surgery, even if the distress is life-threatening. However, there is no clear basis to assume that the rabbis would consider genuine gender reassignment surgery as a breach of modesty. (In the final section of this paper, we will analyze the case in Sanhedrin in depth.)
However, Crincoli reports (2015, p. 147) that Noach Dzmura anecdotally “describes Orthodox transgender men and women he interviewed who state that privately they have received permission from other rabbis to undergo medical transition, including sex reassignment surgery, or that the rabbis have knowingly accepted a change in sex status according to halakha. In one instance, the rabbi even promised that he would officiate a hypothetical wedding between an Orthodox transgender woman and a man.”
As we have noted, generally, the halakha usually operates via observable phenomena, thus what a person is chromosomally may be of little concern. Even scientifically, there are various reasons why someone with an XY chromosome may have the features of a female, and vice versa for an XX chromosome. This is because, as we have seen, there are various genetic diseases that can suppress receptivity to androgen and estrogen, thereby interfering in development despite having the chromosomes that should influence physical sex characteristics.
There is a case in Talmud Yerushalmi (Niddah 10a:1) that shows how far halakha goes in exclusively recognizing external features, possibly even the face alone:
“Rabbi Yesa stated in the name of Rabbi Yochanan: If the entire body is that of a human, however the face is that of a cattle-beast, it is not considered a human child. If the entire body is that of a cattle-beast, however the face is that of a human, it is considered a human child. [Therefore], in the case of the being whose entire body is that of a human, however the face is that of a cattle-beast, even while he is standing erect and reading from the Torah, we can say to him, ‘the time has come to slaughter you for food.’ [Likewise], in the case of the being which whose entire body is that of a cattle-beast, however the face is that of a human, though he is pulling a plow in the field as if he were an animal, we can say to him ‘it is time for you to perform the Halitzah ceremony or consummate the levirate marriage.”
Incredibly, this position of the Talmud Yerushalmi seems to hold that the very definition of whether one is considered human or beast, is determined by external facial characteristics, to the point where the “person” with the face of a cattle-beast, no matter how sentient “he” is, can be slaughtered and eaten as any bull on the farm! It then follows to reason, if so, kal vechomer surely external, and even possibly mere facial characteristics can be used to determine gender!
However, aside from the possibility that the halakha may not be in accordance with this obscure Yerushalmi, two unresolved questions remain: (1) For a transgender person who had sex reassignment surgery or hormones, would only the “top” be required to achieve status of a particular gender, as per the Yerushalmi, or for gender matters, only the “bottom” as this is more relevant, or perhaps both? In consideration of this point, one should note that the language of both Tanach and Mishna can use the word “face”, or face-like metaphors, to euphemistically refer to lower sexual regions. (See Proverbs 30:20 and Mishna Sanhedrin 8:1.)
A second unresolved question is that perhaps the Yerushalmi only holds this way when the person is born as such, however if the person was surgically or otherwise changed after birth, we follow the original biological makeup.
As we noted, Tzitz Eliezer seems to rule that we follow appearance. It is notable that Rabbi Waldenberg’s opinion is a lone one, and this can be especially problematic in the world of halakha, where at times when there is doubt one must be stringent and follow both opinions. Thus, a person who has had male to female surgery may have, quite literally, burned the candle at both ends. Here is why: If this person is not considered to be a woman, which aside from Rabbi Waldenberg, no other authority has maintained this position, “she” cannot marry a Jewish male nor a female. If halakha considers him a male, he obviously cannot marry another man as this would be a homosexual union. And, if he is to be considered a male, he may also be forbidden to marry a Jewish female, as a Jewish female is forbidden to marry a male with significantly deformed sexual organs, save for a convert (Shulkhan Arukh, EH 5:1).
Even in secular law, it is significant to note that the basis for determining sex and gender is far from consistent. According to Cricoli (2015):
״In fact, in the United States, there is no singular definition of what makes an individual legally a man or a woman. Different jurisdictions and different policy-makers within these jurisdictions rely on different aspects of biology, identity, and legal documents to define what constitutes legal sex and for what purpose. The role of the birth certificate as a recording of sex assignment at birth is mitigated in those locations that permit this document to be altered as part of the process of socio-legal sex reassignment.”
Thus, to summarize so far:
So far in our study, we have not considered persons who do not take surgery nor take hormones. This is a significant category, especially for youth manifesting Gender Dysphoria, because the ideal therapeutic response would be to allow the person to experiment with modes of dress, behavior and expression during adolescence without making permanent changes. This will serve a dual purpose of relieving the Gender Dysphoria as well as allow for developmental experiences via therapy and dialogue that could lead to resolution of the Dysphoria, either via full transformation, partial transformation, or becoming comfortable with differences in physical anatomy versus perceived gender.
At first glance, one would think it unlikely that halakha will recognize the self-identified subjective determination of gender as having any validity. Thus, for an Orthodox person experiencing Gender Dysphoria who would like to pass as their identified gender, there can be several halakhic challenges in terms of rituals that depend on gender, such as talit, tefilliin, minyan and aliyot. In addition modesty rules and lo tilbash prohibit cross-dressing and yichud (being alone in a room, unchaperoned) with the opposite gender. This could greatly interfere with normal social interactions of a young person who is in a religious environment and wants to pass as their subjective gender. Therefore, given the amount of emotional distress involved, it is worthwhile to explore possible pathways to harmonize this subjective need with halakhic realities. In addition, if there is a possible halakhic approach, even if of a minority status, it may well be preferred as it would allow family, community and school to consider the transgender person within halakhic boundaries, reducing stigma, and allowing a young person to remain in a religious environment.
Assuming a person, though subjectively, but still sincerely believes “self” to be of a different gender than anatomical sex, is there a way that this belief is strong enough to redefine whether the person is transgressing gender based prohibitions? The surprising answer is, possibly yes. Let us examine some viable approaches:
There is a concept in halakha known as oness, omer mutar as well as mitasek. Oness is the idea that a person who has absolutely no choice and feels utterly compelled by outer or inner circumstances is simply not liable. (See Shulkhan Arukh YD 152 throughout which discusses various scenarios of actual and psychological compulsion.)
Some examples of this include:
(1) Yoma (83a) where we allow the ill person to eat on his say so, despite doctors feeling that he is not in danger. The rabbis quote a verse in Proverbs (14:10) “The heart knows its own bitterness.” So, we highly respect the perceived subjective state.
(2) A second example, which we alluded to earlier, comes from a strange situation described in Sanhedrin (75a) where a man became so lovesick, that the doctors attested to the rabbis that he would die if he could not fulfill the object of his desire. The rabbis spent much time deliberating over how or if his need could be met. The rabbis, with great compassion and no cynicism at all, took the doctors’ description of his emotional subjective state at face value. They did not declare, “it’s all in his head”.
(3) The concept of mitaskek, which is more or less the idea that a prohibition committed on the wayside, with no intention, is not truly considered a full violation. That is different than an accidental commission due to forgetting the law; it's more like walking past a motion detector which activates an electric light on the Sabbath. The idea is, the person is not even intending to commit the prohibition, even though in fact the person in body is committing the prohibition. (This is a complex halakhic sugya. See for example Keritot 19b, Kovetz Shiurim II:23-7, and Kehilot Yaakov Shabbat siman 34.) The point for us to ponder is that arguably, someone who genuinely believes himself to be of a different gender than his/her birth gender, even if he/she has the sexual characteristics of the other gender, and could technically be violating certain prohibitions of modesty and lo tilbash, may in fact not be doing so. The logic being, that there is no intention of cross dressing behind the act. This person born with a female body who decides to wear men's clothes because she feels himself to be a man, arguably has nothing to do with the violation that the Torah put forth about a male or female who purposely masquerades as the opposite gender in order to presumably commit sexual malfeasance. However, in consultation with a senior posek, the author was advised that it would seem that it is hard to apply mitasek to this situation because the person is still aware that s/he is cross dressing, even if s/he may feel it truly to not be cross dressing because of a belief about his/her "true gender".
On the other hand, it may be possible to apply the principle of omer mutar. Omer mutar is a fascinating sugya in Makot (9a) that considers the status of a person who does a sin, not out of negligence or lack of study or awareness per se, but out of a genuine belief that it is permitted. This belief comes from circumstances, perceptions and lack of correct information that is out of his control to have detected. In some situations, some poskim might consider it to be more than shoggeg (error with culpability), but even an oness (error with no culpability). One classic example of this is a tinok shenishba (a literal, or by extension metaphorical situation of a Jewish person captured as a young child and raised not Jewishly, or some persons today, whose exposure to Judaism is so dilute, that their lack of knowledge is not their fault.) So, the complex question here is, if the person truly believes something, and it is not due to lack of diligence in study, can it be considered an oness (beyond the person's control) and therefore eliminate culpability?
Additionally, if transgender individuals in great emotional distress are at risk for suicide, various acts that normally would be prohibited should be overlooked and accepted. Nevertheless, an important subtle distinction is to understand that oness is not a heter. That is to say, one who is an oness is patur (exempt from liability) but a rabbi cannot necessarily offer a general heter (stating it is permissible), as it is in truth not permissible at all. Rather, the person who is in violation is simply not held responsible for the transgression.
Tefilin, Minyan and Aliyot
In Hilchot Tefilin, Kaf Hachayyim O.C. (38:3:9) discusses the halakhic permissibility of women wearing tefilin. There is a Talmudic tradition that Michal, daughter of King Saul, and wife of King David wore tefilin. However, Kaf Hachayyim raises a question as to why her wearing tefilin, a man’s vestment, was not a violation of lo tilbash? Kaf Hachayyim provides a novel answer: (based on kabbalistic sources) Michal knew through divine inspiration that she had the soul of a man. This is remarkable. It is noteworthy how one of the wonderful aspects of Halakha is that one can use prior rulings that seem to be unrelated, and derive from them new meaning for future generations. The Torah allows for unfolding of old perspectives onto genuinely new situations.
Though this is a unique answer, it requires further study and raises logical questions. Even if we were to fully accept Kaf Hachayyim’s assertion as correct, the implication is that one who has the body of a female but the soul of a man would not be violating lo lilbash! How is this possible? The Torah prohibition is obviously referring to externally visible gender not gender of the soul! How would it be sensible that a halakha be based on a person’s soul identity? The general rule is “The hidden is for G-d, and the revealed for us” (Deuteronomy 29:28), and this dicta is rabbinically applied almost universally to mean that halakhic rulings are based on observable phenomena (See Niddah 20b, and Sanhedrin 6b.) One answer, though unlikely, is to consider the prohibition as referring to the soul gender and not the body gender for those who divinely ascertain this information. Or, we might we propose that a prohibition when transgressed in the spirit of the correct gender is not considered a violation. In other words, since the person subjectively believes him or herself to be of a particular gender, then it is acceptable. This second approach, while quite novel, does manage to avoid the problem of a ruling based on non-observable phenomena. How so? When it comes to matters that pertain to self-intention, there is halakhic precedent for basing a decision based on internal subjectivity such as we find by oaths (Maimonides, Laws of Oaths 2:7, Talmud Nedarim 19a). This is not the same as basing a halakhic decision on non-observable phenomena, because it is about intent and not reality. So, by pilpulistic argument, we can justify the Kaf Hachayyim’s logic as follows: Halakhically, in terms of various external laws that depend on others’ perceptions, Michal’s gender was female. For example, she would not be considered a male inheritor, and could not serve as a witness in the capacity of a male. However, insofar as the restriction of lo tilbash, since “she” believed she had the soul of a man, and therefore subjectively did not cross dress. This is admittedly a strained argument, and yet we do need to find a way to understand the lomdut of such a great sage, even if the accepted halakha is not in accordance with him. It could be that since modes of dress are based on culture and custom (see Shulkhan Arukh, YD 182:1) he considered it analogous to the laws of oaths which also are based on language, culture and custom (Nedarim 49a). Therefore we might suggest that Kaf Hachayyim felt that we can also allow internal perceptions and subjectivity to define the prohibition in lo tilbash as it does in regard to oaths. Thus, at least insofar as Michal wearing tefilin, Kaf Hachayyim allowed “her” self-definition to determine “her” gender. In case one might object to my lomdut and argue, having a ruach hakodesh perception of one’s soul gender is not the same as self-perception, and even the Kaf Hachayyim would not allow a transgender person to cross dress, because such a person’s self-perception is not based on divine insight. While that may be true, in terms of the lomdut that we explained the violation can only be neutralized by the subjective belief. Otherwise, we would be forced to the absurd conclusion that according to Kaf Hachayyim, Michal would be forbidden to ever wear any female clothing and only wear male clothing. This is a preposterous idea! Rather, we must consider that somehow the subjective definition only is validated with the intention of the moment of the act, and is not a firm immutable reality. That is, violation is dependent upon the gender intention of the individual. If the individual is dressing in accordance with his/her believed gender, be it from the soul, or from some other strongly felt identity, that is not a violation of lo tilbash. Lo tilbash then, according to this Kaf Hachayyim, is defined as only when it is done to masquerade and purposely present oneself as the wrong gender than the person one sees him/herself to be in order to conduct sexual immorality, but not merely to dress as one feels one is. Rashi (Deuteronomy 22:5), based on Sifre, seems to make a similar point: “The prohibition is to dress as a man, in order mingle with the men. This can only be done with the intention of sexual immorality.” The wording of Rashi suggests that the basis for the prohibition is the intention to masquerade as a different gender in order to gain access to private sexual encounters. However, other authorities indicate that the prohibition extends beyond these parameters, see for example Bach (Y.D. 182:5) who discusses wearing an opposite gender's garment for purposes of badchanut (wedding jester) or for keeping warm. Bach leans toward prohibiting such activities, even though the intent and result are not to pass as a different gender.
Though it is clear that the majority of poskim prohibit crossdressing stemming from a transgender identity, individuals who are struggling with this and their families might find comfort in that there are are possible avenues that can still allow a lifestyle in conformity with the Torah and in conformity with one's subjective gender reality. Even though this approach is based on minority opinions and forced legalisms, there is a generally accepted principle in halakha that one can rely on a minority opinion when there is great duress. (Niddah 7b, “kedai Rabbi Eliezer…”, and Shach Y.D. End of 242 Klalley Hapsak.)
Transgender Females to Males who Would Like to be Part of a Minyan and Receive Aliyot.
Up until this point we examined various halakhic rationales whereby transgender persons could possibly be viewed by the halakha as their identified gender instead of their anatomical sex. In this section, we will discuss how they may be allowed to participate in some male religious activities even if the halakha views them as per their anatomy and sex, i.e., female. This discussion is significant, as a transgender female to male may want to “pass” and participate in a minyan, without disclosing his sex status. It could raise ethical and halakhic concerns as though one may want to “pass” as male, one may also not want to be dishonest, nor disrespect the halakhic observance of the kehilla who unwittingly are considering this female person to be a male.
In regard to public synagogue worship, there are five halakhic considerations for a male to female transgender:
It is highly unlikely that someone who anatomically is female can count toward a minyan. The halakha requires 10 males (Maimonides, Laws of Prayer 12:3). If the person has physical features that identify the person as female, subjective gender identity will not allow for this person to be considered a male. Likewise in regard to leading the prayers, the Shalaich Tzibbur must be one who is fully obligated in public prayer, which is the same reason why a minor cannot lead the prayer.
In regard to tallit and tefillin, we already discussed how it is possible that in this respect, a person who identifies as male can find grounds to allow wearing these vestments, although not the normative halakhic position.
Regarding, crossing the mechitza boundary, we must consider if there is a significant halakhic problem for a female to pray in the men’s section, and if not, then a fortiori it would be permitted for a female to male transgender person. To answer this, we turn to a responsum of Rabbi Moshe Feinstein (Igrot Moshe, OH, 5:12):
“In regard to your question if there is a requirement for a mechitza for merely one or two women...there is no obligation for separation when it is a few women. The exact number of women requires more explication, such as in a study hall or a mourner’s house…is it permitted for a number of women to remain in the back. Now, for generations it has been accepted, that a female beggar would enter during prayer time, or even a woman mourner would enter to recite kaddish. In practice, to permit this requires careful study and depends on particular and various circumstances. Nevertheless, I would not permit a woman to regularly attend a service without a mechitza, even if she was the only one, but I could see it permissible as an infrequent occurrence, allowing up to two women to pray without a mechitza.”
Thus, in terms of the concern about a female to male transgender person surreptitiously passing as a male and praying in the Men’s section, it would seem to be permissible. In fact, the more “he” passes as a male, the less disruptive it would be. True, Rabbi Feinstein did not permit this on a regular basis, but perhaps in this situation he would allow it on a more frequent basis, both because there is no perception that a female is present, and also we must consider the factor of emotional distress.
In terms of being called up for an Aliyah while appearing to be a female, we turn to Talmud Megillah (23a):
“The Sages taught in a Tosefta (Megilla 3:11): All people count toward the quorum of seven readers, even a minor, and even a woman. However, the Sages said that a woman should not read the Torah, out of kvod zibbur (respect for the congregation).”
Shulkhan Arukh (O.C. 282:3) rules in accordance with this. The term kvod zibbur “respect for the congregation” is somewhat ambiguous, though the basic idea would seem to be that having a female in the men’s section would be disruptive. It is unlikely that the concern is modesty as the term would have then been tzniut. It is more along the lines that since originally one who was called for the Torah read on his own, by calling up a woman it implies that the congregation is illiterate, which in Talmudic times was an actual possibility and thus a credible discredit. Ritva (Megillah 4a) seems to support this interpretation as he references an injunction in Talmud Succah (38a, and Rashi Op. Cit. “Meara”) against having one׳s wife recite a blessing for him due to its implication that he is not literate in Hebrew. In other contexts, the Talmud uses the term kvod zibbur to refer to affronts such as delaying prayer (Yoma 70a, Rashi Op. Cit.) or appointing, on a regular basis, a priest to recite priestly blessings who is not yet physically mature enough that he has a beard (Rashba, Chullin 24b). Regardless of the precise interpretation of what constitutes a desecration of kvod zibbur, since it is based on a subjective perception of one sort or another, instead of an actual disqualification, common sense dictates that a female to male transgender person who passes as a male could not be an affront to kvod zibbur, as the congregation is unaware of the person’s female anatomical status.
Social Stigma and Communal Anxiety
Another set of hurdles are more social, and in some ways much harder. People, schools, synagogues and communities may have difficulty adapting to the presence of transgender persons, regardless of the technical halakha. The fear of negative influence and stigma is formidable. Consider for example that many Orthodox Shuls will not give an openly homosexual person an Aliyah (calling up to the Torah reading), but for the sake of kiruv (outreach) would indeed give an open Sabbath violator an Aliyah. Perhaps it is possible to argue various technical distinctions to rationalize one over the other, however it seems to this author that the key issue is that many feel revulsion and fear of influence in regard to homosexuals, and this fear is less felt in regard to Sabbath violators. In addition, fear of influence can also becone a halakhic concern as one might argue this could be construed as endorsing homosexuality, even though for utterly subjective and cultural reasons, giving an Aliyah to a Sanbath violator perhaps will not be construed as such. Thus, transgender persons are likely to experience significant social hurdles in the Orthodox community. In terms of this challenge, education, advocacy and leadership can hopefully make a difference in reducing stigma and fears and develop approaches that respect halakha, community and the individual.
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