When I
was young, girls were not permitted to wear pants to the public school attended—dresses,
skirts, or jumpers were required. This impinged on what and how we played
during recess. Personally, I loved hanging upside down from the monkey bars and
flipping off them onto the ground, so I wore shorts under my skirt. My teacher
told me it was impermissible to wear shorts under my skirt because shorts weren’t
allowed. I pointed out that I was wearing a skirt, as required. She said yes,
but when I flipped upside down on the monkey bars, one could see my shorts. I
asked her if she would prefer to see my underwear, and told her to take it up
with my mother. Wisely, she didn’t. More significantly, the sexist dress code
of my childhood had repercussions for what girls and boys were exposed to and
encouraged to do. For example: In second grade the Cub Scouts were planning a
visit to a fire station where they would tour a hook-and-ladder truck and slide
down the firefighters’ pole. I pleaded with our Brownie troop leader to plan
the same field trip for us. She explained that this would not be possible
because we wore skirts. I told her I would wear shorts under my skirt. No go.
While the boys visited the fire station the following Tuesday, we girls sat in
a classroom hand-sewing burlap aprons with apple-shaped pockets for our
mothers. (You won’t be surprised to know that my mother never wore the one I
brought home. I could hardly blame her. Would you wear a burlap apron?) What
message did this deliver about what boys are capable of doing, and aspiring to
do? Upshot: I quit Brownies.
In this
week’s parashah, Ki Teitzei, we find a prohibition against
wearing clothing that is not socially designated for one’s sex, perhaps the
earliest iteration of the school dress codes of my childhood. The Torah has in
mind cross-dressing.
לֹא-יִהְיֶה כְלִי-גֶבֶר
עַל-אִשָּׁה, וְלֹא-יִלְבַּשׁ
גֶּבֶר שִׂמְלַת אִשָּׁה: כִּי
תוֹעֲבַת יְהוָה אֱלֹהֶיךָ, כָּל-עֹשֵׂה
אֵלֶּה.
A woman must not put on man’s
apparel, nor shall a man wear woman’s clothing; for whoever does this things is
abhorrent to Adonai your God. (Deuteronomy 22:5)
Rashi’s
(11th century, France) commentary on the verse has prevailed through time.
Rashi explains that “a man’s item/utensil” means “that she should not appear
like a man so she can go out among men, for this is only for the purposes of
adultery.” Concerning “woman’s clothing” he writes: “So he can go and be among
the women.” And concerning to’eivah, which is variously translated “abomination”
or “abhorrence,” he tells us: “The Torah forbids only garments that might lead
to a to’eiva (abomination).” Is Rashi saying that the purpose of
the law is to restrict behavior that could lead to sexual impropriety? Or is he
saying that if the purpose of dressing like the other sex is to engage
in sexual impropriety, only then it is forbidden? Sefer ha-Chinukh (13th
century, Spain) sides with the former interpretation: “The root of this
commandment is to keep us from sexual sin… and there is no doubt that if men
and women’s clothing were the same, [men and women] would mix and the earth
would be filled with impropriety.” But the Shulchan Arukh permits
cross-dressing on Purim, because its purpose is simchah (happiness,
which is a mitzvah on the festival) and not fraud. Hence, it weighs in on the
side of the latter interpretation of Rashi. Clearly, there is no universal ban
on cross-dressing derived from Torah.
The
effects of Deuteronomy 22:5 have been felt beyond the realm of clothing; this
verse has been used to render halakhic rulings on whether and where men and
women may shave the hair on their bodies or dye it. (Although you may be
plotzing for the details, I don’t have room to delving into them here.) But
does anyone truly believe that cross-dressing is a ploy to commit adultery?
Where
once the concern was the style of clothing men and women wore as well as
possibility of men appearing like women and vice versa (remember Yentl?),
today concern is expressed about far more: sexual orientation and people whose
gender identities don’t conform with what others believe they ought to be, with
implications for marriage, the use of public accommodations, the dispensing of
medical services, and much more.
Today
the war in our changing understanding of the fundamentals of being human takes
place in the arena of rest rooms and locker rooms. And sadly, it is a war, with
far too many people firing shots and far too few listening and considering what
those on the firing line are thinking, feeling, and experiencing in their
lives. Rancorous
debate about the use of rest rooms and
locker rooms by transgender people who refuse to live secret lives of shame
(thank goodness!) has vaulted to the the headlines again and again. We should
be grateful for their courage to teach a stubborn society that the binary
nature of our social accommodations is problematic, as are the labels “male” and
“female,” slapped on at birth based on apparent anatomy, but not
necessarily reflecting an individual’s identity and experience of themselves.
And it is high time to recognize that the obdurate and inflexible insistence by
far too many “religious” people that ancient Scriptural stories read in a
limited literal manner do not accurately define humanity in the face of
abundant scientific and human evidence to the contrary.
In the
Jewish community, the response has been predictable. Many (but not all) in the
Orthodox world doubled-down on their rejection of same-sex marriage. In the
wake of President Obama’s endorsement of same-sex marriage, Agudath Israel of
America declared, “We hereby state, clearly and without qualification, that the
Torah forbids homosexual acts, and sanctions only the union of a man and a
woman in matrimony. The Orthodox Jewish constituency represented by Agudath
Israel of America, as well as countless other Jews who respect the Jewish
religious tradition, remain staunch in their opposition to redefining marriage.”[1] Yet Torah does not portray marriage as “a
union a man and a woman.” Abraham and two wives simultaneously; Jacob had four
wives and children with each.
Although
Torah imagines a gender-binary universe, Talmud is well aware of people who don’t
fit neatly into binary gender categories. The Rabbis discuss אנדרוגינוס androginos
(hermaphrodites), טומטום tumtum
(indeterminate gender because
genitalia are “hidden”), אילונית eylonit (a masculine woman), and סריס saris (a
feminine man). For the most part, the criteria for discerning which category a
person fits into pertains to anatomy because that is what they understood—but
they recognized there is more variety than simply “males” and “females.”
In the
responsa literature we find questions raised by people whose gender and
identity do not conform to Torah’s claim concerning the nature of humanity.
What is most striking is that alternative ways of being human are acknowledged
and affirmed; it is halakhic questions about marriage and divorce that are
debated—and it is not always the case that the latter (marriage) impugns the
former (identity). Let me explain further.
In a
volume of responsa entitled Besamim Rosh, usually attributed to R. Asher
b. Yehiel (Rabbeinu Asher, early 14th century, Spain), sexual identity for the
purposes of halakhah is taken to be a function of genitalia, not secondary
characteristics. The question posed is whether a man whose genitalia have been
removed must divorce his wife in order to effect dissolution of their marriage,
or whether the sexual transformation effects dissolution of the marriage
automatically because “a new body has
appeared and is comparable to a woman’s.” No
definitive conclusion is reached in the responsum concerning whether divorce is
required, but the responsum holds that the transgendered person is no longer
competent to contract marriage as a man. At first blush, this seems like a
problematic decision, but in addition to recalling that this was written in the
14th century, let me point tout that Rabbi Eliezer Waldenberg (d. 2006),
referring to Besamim Rosh writes that if a person has changed in such a
way so as to be unable to contract a marriage as a male, this automatically
terminates any existing marriage.[2] He thereby acknowledges that the surgery affects a
halakhic change in sexual identity. We might well argue (as I certainly would)
that the halakhic change in sexual identity does not terminate the existing
marriage, but if the couple chooses to end the marriage, that is their right.
But even Rabbi Waldenberg acknowledges that a man can become a woman.
The
reciprocal case is found in a responsum of R. Yosef Pelaggi (Yosef et Ehav 3:5),
wherein he acknowledges that sexual reassignment surgery changes one’s sexual
status. Written in the 19th century, it concerns a woman who underwent surgery
to acquire the sexual characteristics of a male. Pelaggi concludes that divorce
is not necessary to dissolve the marriage because the woman has become a man.
Here is a portion of the responsum:
Question: A question came if a get [divorce decree]
is necessary if this should happen, namely, Reuven married a woman in the
manner that Jewish women get married, and he had intercourse with her as men
and women do, and after a number of years something occurred to her and she
changed from a woman to a man in all ways. What is the law concerning this woman
who was a woman and a married woman, and then became a man? Does Reuven have to
divorce her with a get in accordance with Jewish Law since she was his
wife, a married woman, or perhaps he doesn’t have to give her a get
since she isn’t a married woman but a man.
Answer: …In regard to our question it seems that a get
is not necessary for he is a man now and not a woman. The get procedure
is that the man gives a get to his wife and writes in the get “you my wife,” and we have no woman before us but rather
a man…and he also writes in the get “you are permitted to any man” and she is not a
woman who is permitted to any man...therefore in my humble opinion it seems
that Reuven does not have to give a get to his wife who became a
complete man.
These
responsa establish a strong halakhic precedent for acknowledging that not all
human beings fit into a narrow binary universe and that a sex change actually
affects a change in one’s sex.
Joy
Ladin, a transgender woman who teaches English at Stern College for Women of
Yeshiva University, writes movingly of her own experience as a transgender
person:
Because my family wasn't religious, I didn't grow
up with institutionalized voices insisting that the Torah has no room for
people like me. In fact, when I started reading the Torah on my own – I was 9
or 10 – I saw God AS someone like me, someone struggling to join a human
community despite lacking a body that human beings could see, love, understand.
The Torah portrays the Israelites as unable to perceive, conceive or even
believe in the presence of God even after decades of visible daily miracles,
like manna.
To me, God's rage at not being perceived and
frustrated longing for love seemed to reflect my own feelings as a closeted
transkid. So even though the Torah said that God abhorred me for crossdressing,
I clung to it, because the Torah was the only text, the only voice that spoke
to my transgender fears and longings. To me, the Torah was not just a Tree of
Life – it was the Tree of my Life, rooting my struggles in the
three-thousand-year-old struggles of the Jewish people, leading me along its
ramifying branches toward the God who, inexplicably, had created me.
Jewish tradition holds that every Jewish soul is
represented by a letter in the Torah. So when I say the Torah speaks to me as a
transgender Jew, I'm expressing a radically but profoundly traditional view – because
tradition insists that I too am part of the Torah, that its stories are my
stories, that its paths are mine. And why shouldn't they be? Being transgender
is just a particular mode of being human, and despite all the space devoted to
God, the Torah is essentially about being human.[3]
Kol
ha-kavod to Yeshiva University for
awarding Joy Ladin tenure when she was a man, and for promoting her to full
professor following her transition. I hope that the Orthodox movements arise to
more enlightened direction halakhah is moving. It is time to forge ahead with
compassion, not hide behind fear and insecurity. As for the liberal Jewish
world, most everyone’s on board. You might be interested in the following:
•
The Reform Movement’s resolution the rights of
transgender and gender non-conforming people, affirming its commitment to full equality and
inclusion of all gender identities and expressions, and complete protection for
all people, regardless of gender identity.
•
The Conservative Movement’s Rabbinical Assembly's
resolution affirming rights
of transgender and gender non-conforming people encourages all branches of the
Conservative Movement to strive to be welcoming and inclusive, and supports the
civil rights of transgender and gender non-conforming people.
© Rabbi Amy
Scheinerman
[1]
http://www.cross-currents.com/archives/2012/05/09/agudath-israel-statement-on-same-sex-marriage/.
[2] Tzitz Eliezer
X, no. 25, chap. 26, sec. 6.
[3] Joy Ladin, “Reading Between the
Angels: How Torah Speaks to Transgender Jews,” accessible at http://www.hrc.org/files/images/general/NassoREV_(3).pdf.
Ladin has published five books of poetry and one memoir: Through the Door of
Life: A Jewish Journey Between Genders (2012).
