We've Come a Long Way, Baby / Parshat Ki Teitzei 2016-5776

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

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^[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).