CCAR RESPONSA COMMITTEE
5776.2
Transgender and an Existing Marriage
Sh’elah.
A couple in my community was legally married 19 years ago. In recent months, one member of the couple has come out as transgender. The couple is planning to remain married and began wondering what that would mean for the status of their marriage. Obviously if there are any legal implications, I would recommend speaking with a lawyer, but what are the implications from a Jewish perspective? The responsa that I’ve seen address conversion and marriage after a transition, but don’t address the status of an existing marriage. Would the transition require another formal commitment, especially to have a new ketubah with the correct names and accurate gender language? Would the cisgender partner’s immediate and continued acceptance of the trans partner’s true identity uphold the marriage (I’m thinking of parallels in Ketubot that discuss a how a husband or a wife has to respond to the revelation of an undisclosed flaw that might have impacted their original decision to marry)? Are there other considerations? (Rabbi Keren Gorban, Pittsburgh, PA)
T’shuvah.
1. The Status of the Marriage. Would a married person’s determination that s/he is transgender bring the marriage to an end? On this point, your citation of the halakhic discussion of previously undisclosed “flaws”[1] brings us to an important distinction between divorce (gerushin) and the annulment of a marriage (hafka`at kiddushin). A divorce dissolves a marriage that had been legally valid and binding, while an annulment invalidates the marriage ab initio, that is, the marriage is declared to have never been legally valid and binding in the first place. Thus, if a man marries a woman explicitly on condition that she not bear any of those flaws, the marriage is subsequently held to be null and void should it turn out that she does bear any one of them.[2] On the other hand, if a man marries a woman without making such an advance stipulation, then should she bear any of these flaws the marriage is valid, though the husband has valid grounds for divorce should he choose that option.[3]
This distinction holds for us, although we Reform Jews would understand these rules to operate for either spouse in an egalitarian manner. A person’s gender identification is obviously of relevance to a prospective spouse, and should one conceal that relevant information prior to the marriage, we would have grounds to declare the kiddushin invalid under Jewish law. In the case before us, however, no deception is involved; the person in question did not determine that s/he is transgender until nineteen years into the marriage. Moreover, since “the couple is planning to remain married,” it is clear that the person’s spouse has accepted the situation. Therefore, the issue of “flaws” and their concealment does not apply here, and the marriage would not be invalidated on that account.
2. Is the Transgender Individual a “New Legal Person”? There is, however, another basis on which we might think that the existing marriage is invalidated. The Talmud[4] declares that “one who converts to Judaism is like a newborn child”: the proselyte is a new legal personality, which means among other things that his or her previously-existing bonds of family relationship are now considered to be severed.[5] It could thus be argued that one’s identification as transgender, which clearly reflects a dramatic transformation of his/her self-image, renders that individual a new legal person; if so, his/her marriage might be considered null and void on the grounds that the one who originally entered into it no longer exists. This argument, however, fails to convince. If the transgender individual is a new legal person, then it follows that all his/her existing family relations (in addition to the marriage) are severed. In addition, we would have to conclude that all the transgender person’s existing obligations – contracts, debts, and moral promises – are similarly null and void because this person never entered into them. This would be an absurd situation, both under Jewish law and the law of the land (dina d’malkhuta).[6] We must conclude rather that though this individual has undoubtedly experienced a significant personal transformation, s/he remains, after “coming out” as transgender, the same legal person as before. The marriage therefore remains valid and binding.
3. Is a New Ketubah Required? Given that the spouse who now identifies as transgender will likely adopt a new name, is it necessary for the couple to write a new ketubah that reflects the name-change and that contains accurate gender language? Halakhic authorities have discussed a similar question: is a ketubah rendered invalid when either spouse changes his or her name? Some say “yes.” R. Yitzchak Yaakov Weiss (Britain and Israel, d. 1989) holds that the existing ketubah is no longer valid and, because it is forbidden for a couple to live together without a ketubah, a new one must be written as soon as possible.[7] But others disagree, for two principal reasons. First, the existing ketubah is not invalid because, after all, the witnesses who signed that document testified truthfully: the bride and groom agreed to be married under the names by which they were known at that time. Were we to conclude that a ketubah becomes invalid when either spouse changes her or his name, we would have to draw the same conclusion with respect to other documents (promissory notes, contracts, etc.), leading to an absurd situation such as that described above. And second, one cannot successfully write a valid new ketubah, because since the couple are already married, the witnesses to this new document cannot legitimately testify that “on this date, the groom said to the bride ‘be my wife, etc.’” as is customary for these documents.[8] We hold with this latter opinion. The existing ketubah (like the existing marriage) remains valid, because each spouse recognizes that the other is the same legal person as s/he was before the name change, so that the promises expressed by the document remain in force.
Conclusion. The realization that one is transgender marks a moment of significant personal transformation, but that individual remains the same legal person as before. His/her marriage remains valid, and there is no need to write a new ketubah. Should the couple wish, they may write an addendum to their ketubah that states the fact of the name change.[9]This, however, is not a requirement flowing from the spouse’s new name and gender identification.
NOTES
1. The “flaws” mentioned in the Mishnah are those physical blemishes that disqualify a Kohen from performing the Temple service; see M. Ketubot 7:7 and M. B’khorot ch. 7.
2. M. Ketubot 7:7; B. Ketubot 72b; Mishneh Torah, Ishut 7:7; Shulḥan Arukh Even Ha`ezer 39:3.
3. See M. Ketubot 7:7, B. Ketubot 72b, Yad, Ishut 7:8, and Shulḥan Arukh Even Ha`ezer 39:5. The marriage is of “doubtful” validity (מקודשת מספק), a situation that creates a double disadvantage for the wife: the husband is required to divorce her, but upon dissolution of the marriage she does not receive the sum specified in her ketubah.
4. B. Y’vamot 22b and elsewhere: גר שנתגייר כקטן שנולד דמי.
5. See Mishneh Torah, Isurei Bi’ah 14:11 and Edut 13:2. Does this mean that the Jew-by-choice is not required, and perhaps even forbidden, to say Kaddish for his or her non-Jewish parents or other relatives? Some authorities – Mishneh Torah, Avel 2:3 and Shulḥan Arukh Yore De`ah 374:5 – take this position. Our view, based upon the halakhah that a proselyte is obligated to honor his or her parents (see Mishneh Torah, Mamrim 5:11: a ger should not be seen as having descended to a lower level of moral and religious obligation upon conversion), is that the convert does say Kaddish for non-Jewish relatives. See Contemporary American Reform Responsa (New York: CCAR, 1987), no. 121, http://ccarnet.org/responsa/carr-182-184.
6. As one example of the potential absurdity under civil law: would the transgender person lose his/her national citizenship on the grounds that this “new legal person” was neither born nor naturalized in the country?
7. Resp. Minḥat Yitzchak 7:117 and 10:132. The prohibition against cohabitation without a ketubah is stated in Shulḥan Arukh Even Ha`ezer 66:1 and 3, although the commentators ad loc. note that this “prohibition” lacks a clear Talmudic basis. See also R. Menashe Klein, Resp. M’shaneh Halakhot 14:140.
8. R. Yosef Shlomo Elyashiv, cited in E. Bar Shalom, Sefer Mishpat Haketubah (Jerusalem, 2011), vol. 7, p. 470; R. Shmuel Halevy Wosner, Resp. Shevet Halevy 8:286, par. 3.
9. Sefer Mishpat Haketubah (see preceding note), p. 471, offers a similar suggestion.