Wednesday, May 10, 2017

Halachic Status of Transgender Surgery

Dina Gielchinsky, a counter-terrorism lawyer living in Teaneck, New Jersey wrote the following in an article entitled "Beit Din Orders Woman to Give Get" for the New York Jewish Week:
A recent ruling by the Haifa beit din underscores the need for rabbinical courts to reexamine the halachic status of transgender individuals with deference to the individual’s new reality.
In the case before the beit din, an individual who had undergone sexual reassignment surgery to become a woman refused to give her divorcing wife a gett, claiming that she was prohibited from doing so on the basis that a woman cannot give a gett. The individual’s wife requested an annulment of the marriage because the individual was no longer a man.  The court denied the request, asserting that despite the surgery, the individual was still halachically a man.  The court ordered the individual to give the gett, to which she eventually agreed.
By the court’s reasoning, a transgender man could not be barred from entering a women’s mikvah, as he is still halachically a woman.  A mesader kiddushin would have no ostensible basis to refuse to officiate a wedding between the same transgender man and another man, as the former is still halachically a woman.  And yet, imagine if either of these scenarios actually materialized.  The transgender man would be barred from the women’s mikvah, and would also be barred from marrying another man.  The transgender man’s present and former gender would both be denied.
U.S. courts have uniformly recognized the new gender of an individual who has undergone gender reassignment surgery since the issue first presented itself over forty years ago.  In M.T. v. J.T., 140 N.J. Super. 77 (N.J. Super. Ct. App. Div. 1976), the Appellate Division of the Superior Court of New Jersey addressed the claim of M.T., an individual who was born a male and transitioned to a female, that she was entitled to support and maintenance from her divorced husband.  Her husband claimed that he owed no support because their marriage was void, as M.T. had been born male, and New Jersey at the time prohibited same-sex marriages.  The Appellate Division affirmed the trial court’s holding that “[t]he entire area of transsexualism is repugnant to the nature of many persons within our society. However, this should not govern the legal acceptance of a fact.”  In other words, like it or not, transgender surgery changes an individual’s gender.  
Awareness of, and education regarding, transgender individuals must continue to improve.  Regardless, as the New Jersey court opined, personal judgments should not factor into the halachic recognition of the individual’s reassigned gender.  Further, reality dictates that any halachic impermissibility of gender reassignment surgery cannot render the new gender void.  To simply say that the surgery was halachically prohibited and so the transgender individual is now not a transgender individual leaves the individual without any recognized gender at all.
In response to her article, I sent her and her editor a letter saying the following:
In her recent article about the halachic status of transgendered individuals, Ms. Gielchinsky takes quite a few leaps in logic. She begins her article by citing a case reported by Arutz7 of a married man who had surgery to look like a woman. He was forced by a Beit Din in Haifa to grant his wife a get (bill of divorce), despite his protesting that he is really a woman. Ms. Gielchinsky correctly deduced from this ruling that the Beit Din understands that this man's legal status is unchanged by whatever surgery he has undertaken. The same should be ostensibly true of a woman who similarly underwent surgery to appear like a man.
However, Ms. Gielchinsky then throws in a red herring which seems to contradict this latter corollary of the Beit Din's stance: She makes an a priori assumption that if a woman who had surgery to appear like a man would then want to immerse in a Mikvah or to marry a man, then she would be barred from doing so. She brands such a non-existent ruling as inconsistent with the above mentioned stance expressed by the Haifa Beit Din. Nonetheless, in truth, even if such a woman was banned from using the Mikvah or from marrying a man, such restrictions would probably be enforced for such reasons as other people's right to privacy/decency or to avoiding something which has the outer appearances of being prohibited (i.e. two "men" "marrying" each other), as opposed to an actual question over the woman's personal halachic status. A woman who has a surgery to look like a man remains a woman. And vice versa. One's gender cannot change whatsoever in halacha.
Ms. Gielchinsky then cites precedents from the US Courts that recognize the new gender of a person who has had such a surgery as if that should have any bearing on the halachic discussion. But obviously case law from the US court bear no relevance to on halachic decisions. She then builds a strawman argument and attributes it to the rabbinic decision-makers that argues that because such gender-bending surgeries are halachicly forbidden, they cannot affect one's gender status. Of course such logic is flawed and nobody argues that the halachic prohibition against genital mutilation per se disqualifies its ability to affect one's gender. Rather, the rabbinic understand is that gender is not fluid and cannot change at all, regardless of the fact that trying to do so surgically may be forbidden.
Ms. Gielchinsky ends her article by implying that the rabbinic view leaves transgendered peoples as "individual[s] without any recognized gender at all". This, of course, is a gross misinterpretation of the halacha. As we have already explained, such individuals maintain their original gender, while complications from their bizarre lifestyle and/or other considerations might bar them from realizing all the benefits given to such static-gendered individuals.
In her comments and in his first paragraph, Ms. Gielchinsky makes it clear that she feels that the Haifa Beit Din should have "annulled" the marriage in question. This assertion belays a lack of understanding of the halachic concept of "annulment"--which is, of course, non-existent. According to the Mishnah in Kiddushin, a married woman can only become free to marry somebody else if either her husband dies or he grants her a divorce. There is no such thing as an "annulment", but halacha does recognize that if a woman entered a marriage under false pretenses due to a pre-existing condition on the part of the man, then in certain cases, we can say that her initial consent to the marriage was unfounded, thereby voiding the marriage retroactively. In the case in discussion, it seems that the man had the surgery to look like a woman after the couple was already married. In that case, there can be no argument that the woman's initial consent to enter the marriage was mistaken and there is no grounds for a so-called "annulment".
In my work ha-Makom me-Rachok on Yevamos (pgs. 126-127), I cite the theoretical case of a man who "became" a woman (in an empirical way) and showed how that might effectively annul his original marriage to his wife. But in truth, that possibility too was based on a logical jump that some commentaries take to explain an otherwise enigmatic comment of Rashi. It was meant as an ad absurdum reductio rather than as a full-fledged halachic position. The matter remains purely hypothetical and in the realm of Talmudic pilpul. In practice, even if one can switch genders in an empirical way, it seems that his original gender status remains--certainly such is the ruling for one who merely changes one's gender in an optical way.
To this, she replied:
Thanks for your response, Rabbi Klein.
I do not deny that there are other pretextual reasons for restricting a transgendered woman from using the mikvah or marrying a man.  Those reasons,  however, do not negate the reality that the individual will be left de-gendered.  It’s a reality that needs to be addressed with sensitivity and creativity.
Feel free to post your comment on the website.  I am certainly no halachic authority, and I’m curious to see if others will weigh in with different halachic interpretations.
I responded with the following:
I think I must be misunderstanding something here. You wrote that you do not deny that there are other "pretextual" reasons for restricting a transgendered woman from using the mikvah or marrying a man, yet you still conflate that with such women being "de-gendered." Those issues would not have anything to do with gender, per se. To illustrate the point, I will use an extreme example: Let's say a man cuts off his arms, can he now argue that he has been "de-gendered" because other men are allowed to wear tefillin and he is now different from other men? Obviously not, it has nothing to do with gender, his circumstances ban him being able to do what other men can, but that doesn't mean he is "de-gendered". I think the same would apply to a person who undergoes a surgery to look like the opposite gender. While their personal halachic status remains unchanged, the facts on the ground might bar them from fully being able to continue acting as though they are indeed what they once were before. I am beginning to suspect that you don't really care for the halachic quagmire that transgendered people have inserted themselves into, but that you would rather halacha fully recognize the whims of transgendered people and allow their "status" change to be halachicly recognized. I also don't understand why you feel the need to insert yourself into offering halachic consul, if by your own admission you are not an halachic authority. As a bankruptcy lawyer, would you dare offer your "expert" opinion to a criminal case? Why would something even more important like halacha be any different?I'm not going to post my comment on your website because I'm not trying to spur a debate, I'm trying to understand what exactly you want and seeing if there is anything to it. 

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