SURGERY FOR TRANSSEXUALS

QUESTION:

The Director of the Gender Identity Research and Treatment Clinic of the UCLA Medical Center asks what the attitude of Jewish tradition is to operations changing a person from male to female and vice versa. It is to be noted that the patients are always sterilized by this surgical procedure. (From Dr. Richard Green, through Rabbi Samuel Fishman, Los Angeles, California.)

ANSWER:

IT IS NOT clear from the question whether the patients asking for the operation are at present physically completely male or female respectively, and now desire to be changed from their natural physical makeup or, on the other hand, whether they are incomplete males or females and, therefore, desire to be changed so as to be more completely one or the other. If the question concerns persons who are physically normal but who, for some psychological reason, want to be changed into the other sex, then it must be stated at once that there is not the slightest discussion of such a notion or desire in the traditional literature. If there had been some such incident, it is certain that the rabbis would have strictly forbidden it. This would not be because of any prejudice against surgical or medical procedures. The traditional law is completely liberal with regard to medical necessities. If a patient is seri-ously sick, all ritual prohibitions such as forbidden foods or working on the Sabbath are suspended in order to try to cure or benefit the sick patient. Never-theless such an operation on a normal male would be prohibited. A normal male is under religious mandate to beget children. (One son and one daughter is considered as the minimum fulfillment of this duty.) The physician asking the question informs us that the surgical procedure will sterilize the patient. He is thereby prevented from fulfilling the religious duty of fatherhood, and therefore the operation would be prohibited. A female, however, is not mandated to produce children and, generally speaking, a woman may therefore take antipregnancy measures. One might therefore imagine that a physically normal woman might be permitted to undergo the trans-sexual operation. However she, too, would be prohibited from doing so on another ground which applies equally to both women and men.

Both men and women are under the strict command ment against unnecessarily endangering their lives. Many actions are prohibited simply on the ground that they are dangerous. The Rabbinic maxim is: Danger is even a graver matter than ritual prohibition (“chamira sakanto me’isura,” Chulin 10a). This Talmudic law is embodied in the codes (e.g., Yoreh Deah 116). Now there can be no doubt that the surgical procedures described involve serious dangers to health and life. Therefore merely because of psychological or emotional preferences such radical procedures cannot be permitted. Of course, if a group of reputable doctors would declare that the patient is in grave psychological state and that only the trans-sexual operation could restore him to mental health, then in such an extreme case the question might be reconsidered. But lacking such a medical decision, it is against Jewish religious law to sterilize a male or to endanger the life of men or women.

But there is, of course, another side to the question of the trans-sexual operation. Suppose, now, that we are not dealing with physically normal people who prefer to change their sex by means of the operation described. Suppose the patients are not physically normal. If we are dealing with patients who are imperfectly developed, who have rudimentary sexual organs, or who are physically bisexual (androgynes) might not an operation be permitted to change them completely into one sex or the other?

With regard to such unfortunates there is a great deal of material in the Talmud, both legend and law. The Talmud makes a distinction between two types. The first are those who have both male and female organs; these are the true androgynes who are frequently referred to in classic literature. In fact the Talmudic name for them is Greek, aner, gune, “man and woman.” The second type is called tumtum., a word of uncertain origin, but which may come from the root meaning “enclosed” or “hidden.” These do not have organs of both sexes, but their organs are undeveloped (undescended, etc.). The androgenes are of both sexes; the tumtum are of unknown sex. Thus we are told (in Yevamot 83b) that Rabbi Judah cut open a tumtum and that the man later fathered seven children. The Talmudic passage also refers to the possibility that a similar operation might prove the tumtum to be a woman.

As to the androgynes, there is a great deal of legal enactment as to which duties must be carried out that pertain to a man and which duties pertaining to a woman. Mostly the androgynes are considered to be of a sort of third gender (beriah bifne atsmo). For the convenience of the researcher in this field, it might be useful to mention that most of the laws pertaining to the androgynes and the tumtum are to be found in the Baraita at the end of Mishnah Bikurim; in a complete, special discussion of the question by Menachem Azaria da Fano (Italian rabbi, 16th-17th century) in his responsa collection, #130; and in the Encyclopedia Talmudis, s.v. “Androgenes.”

For the sake of completeness, some legendary material on the subject might be mentioned. Because Scripture (Genesis 5:2) says of mankind, “Male and female He created them,” the legend (Genesis Raba 8:1) says that Adam was created as an androgyne and that later the two sexes were separated. Another legend is that he was created a Siamese twin, one male and one female, and then they were divided. Still another legend concerns Abraham and Sarah and it is based upon the fact that it took them so very many years before they had a child. The legend is that they were not androgynes, but tumtum, of hidden sex, and that (apparently after an operation) they became normal and produced children.

While, therefore, the Talmudic literature speaks of operations on the undeveloped (tumtum) , it makes no reference at all to any operation on androgynes. If they knew of such an operation as is now described in the question, they would not object to it on the ground that the operation would sterilize the patient, because an androgyne does not have the mandate of the nor-mal man to bear childen. But the general objection mentioned above would apply, namely, that so drastic an operation as described is certainly dangerous. A dangerous operation would never be permitted unless there is a fair prospect of healing the patient. If, for example, the androgyne is in perfect health, again it would require a consensus of medical opinion that his mental state is so bad that something must be done and that the operation has a fair chance of restoring him to mental health. Otherwise it is forbidden to undergo such serious danger as the surgery involves.

To sum up: If the patients referred to are normal male or female, respectively, and merely want a change of sex, there seems to be no way in which Jewish tradition can permit it. It is not permitted to sterilize the male, which the operation would do; and as for male and female, it is forbidden to put them into unnecessary danger. As far as the tumtum is concerned, if there is a relatively simple operation to restore them to perfect male or female status which is already inherent in them, then it is permitted, and the Talmud already speaks of such operations. As for the bisexual person, the androgyne, who is otherwise in good physical health, it is hard to see how, in the spirit of Jewish legal tradition, such a serious operation could be permitted.