MARRYING A TRANS-SEXUAL

QUESTION:

Two young men converted to Judaism. Then one of them underwent a trans-sexual operation, and the state now accepts him as a woman. May the rabbi officiate at the marriage of this couple? (Asked by Rabbi Gordon Gladstone, Middletown, Ohio.)

ANSWER:

THE INQUIRER STATES that the person who took the operation is accepted by the state as a female. Just what does that mean? Does it mean that the state would issue, or has already issued, a marriage license to this pair as a male and female couple, permitted to marry under the laws of the state? If the state did issue a license, or indicated that it would issue a marriage license, to this pair, then there might be some possible consideration for permitting the marriage or perhaps, even, for the rabbi to officiate. But if the state has not issued a license, then the rabbi cannot legally officiate, and we are saved from dealing with this uncomfortable and unpleasant matter.

Whether or not a license has been issued, let us see what guidance tradition might offer on this trouble some question. There have been statements in the past in the Jewish tradition and the laws which deal with persons of dubious sex. There is much discussion of the tumtum and the androgynous (i.e., hermaphrodite) and also of the ailonis, a woman of such masculinity that she cannot be expected to bear children. There is, in fact, a whole chapter in the Mishnah (the fourth chapter of the tractate Bikkurim) which deals with the androgynous, and there are mentions in the literature of operations or changes in these various forms of incomplete sexuality, but there is no reference at all to any operation to change a person by artificial means from one sex to another. Of course the tumtum was an incomplete male already. This androgynous, or hermaphrodite, had organs of both, and the adonis was primarily a female. One especially interesting reference to a sex change is cited by Abraham Ibn Ezra. In his commentary to Leviticus 18:22 (the verse forbidding homosexuality), Ibn Ezra cites Rabbenu Chananel, who says: “There are some who can make changes in the body to have the male look like a woman, but this is not possible in nature.” Aside from this citation from Rabbenu Chananel, there is no real reference in our past literature to an effort toward artificial sex change. What references there are refer to persons who by nature are imperfect in the sexual parts of their body, or else to the mutilated (sariss).

However, in modern times, because of the sex-transformation operations which have been taking place recently in America, discussions have arisen in Israel dealing with the Halachic problems raised by such operations. In the latest volume of Noam (Vol. 16, p. 152) there is a full discussion by Abraham Hirsch on the matter. The discussion revolves around a situation somewhat different from the one in our discussion. It deals with the Halachic problems involved if, after a couple has lived together as husband and wife, one of the members undergoes a sex-transformation operation. In that case there are apparently two women, or two men, living together as husband and wife. The question is discussed in the article, then, whether a get, a divorce, must be issued. Hirsch cites an earlier author on the question, who says that the divorce must be issued because the parties are now of the same sex. But Hirsch refutes this as follows: The sex transformation is not really what the name indicates it to be. The outer body of a man may be changed to look like that of a woman, but the person is not now a woman in any essential sense. There are no womb and ovaries, and it is impossible for the so-called woman to conceive and bear children. This is a fact confirmed to me by a leading gynecologist.

Therefore the question before us, namely, whether a rabbi should officiate at the marriage of such a pair, is essentially the following: Is the new “woman” really a woman? If “she” is physically, as it is clear, only superficially a woman, then this marriage would be a marriage of two men, a homosexual marriage, to which a rabbi dare not give the honored term kiddushin, “sanctification,” i.e., to a homosexual relationship, which Scripture calls “an abomination” (Leviticus 18:22).

However, there may be another and a more lenient way of looking at the question. This new “woman” (with internal male characteristics) may be described in the term used in the Halacha, ailonis, namely, a masculine woman, a woman who is masculine in voice and bearing and is unable to have children. The Talmud (in Ketubos 101b) describes an ailonis as “a woman and not a woman,” a description which could fit this ex-male. As for the ailonis, the law is clear. A marriage between a man and an ailonis is absolutely valid in the law. The Mishnah on which the Talmudic discussion is based (Ketubos 11:6) says that if a man marries an ailonis, knowing she is an ailonis, the marriage is valid in every way. So Maimonides decides in Ishus 4:10. If, then, this new woman is to be deemed an ailonis, a marriage of a man to her might be deemed valid in Jewish law.

Therefore we have two opposite lines of guidance: one that this marriage may be considered homosexual and therefore forbidden; the other that the new woman could be considered merely a mannish woman, ailonis, and the marriage permitted.

How, then, shall we decide this dilemma? Ft would be wise to let the decision be based upon the reaction of the community to such a marriage. If the community, including the larger general community, would be outraged or cynical or derisive at a rabbi officiating at this marriage, then the Jewish community would be hurt by his action. How can the community attitude be determined? Perhaps as follows: If the state decides to issue a wedding license to the couple, then we can say that the general community fully accepts this marriage, and the rabbi may safely officiate. If, however, no wedding license is issued, the rabbi cannot officiate legally anyhow, and also has saved the community from ugly repercussions in a miserable situation.

CCAR RESPONSA

Contemporary American Reform Responsa

199. Marriage of Transsexuals*

QUESTION:

May a rabbi officiate at a marriage of two Jews, one of whom has undergone a surgical

operation which has changed his/her sex? (Rabbi D. Gluckman, Family Life

Committee)ANSWER: Our responsum will deal with an individual who has

undergone an operation for sexual change for physical or psychological reasons. We will

presume (a) that this has been done for valid, serious reasons and not frivolously; (b) that the

best available medical tests (chromosome analysis, etc.) have been utilized as aids; (c) that this

in no way constitutes a homosexual marriage. There is some discussion in traditional

literature about the propriety of this kind of operation. In addition, we must recall that tradition

sought to avoid any operation which would seriously endanger life (Shulhan Arukh Yoreh

Deah 116; Hul. 10a) . The Mishnah has dealt with the problem of individuals whose sex

was undetermined. It divides them into two separate categories, tumtum and

androginos. A tumtum is a person whose genitals are hidden or undeveloped and

whose sex, therefore, is unknown. R. Ammi recorded an operation on one such individual who

was found to be male and who then fathered seven children (Yeb. 83b). S. B. Freehof has

discussed such operations most recently; he permits such an operation for a tumtum,

but not for an androginos (Modern Reform Responsa, pp. 128 ffl. The

androginos is a hermaphrodite and clearly carries characteristics of both sexes

(M. Bik., IV, 5). The former is a condition which can be corrected, and the latter, as far as

the ancients were concerned, could not. So, the Mishnah and later tradition treats the

androginos sometimes like a male, sometimes like a female, and occasionally as a

separate category. However, with regard to marriage, the Mishnah (Bik 4.2) states

unequivocally, “he can take a wife, but not be taken as a wife.” If married, they are free from the

obligation of bearing children (Yad Hil. Yibum Vehalitzah 6.2), but some doubted the

validity of their marriages (Yeb. 81a; Yad Hil. Ishut 4.11; Shulhan Arukh Even

Haezer 44.6). The Talmud has also dealt with ailoni, a masculine woman who is

barren (Nid. 47b; Yeb. 80b; Yad Hil. Ishut 2.4). If she marries and her husband was aware

of her condition, then this is a valid marriage (Yad Hil. Ishut 4.11), although the ancient

authorities felt that such a marriage would only be permitted if the prospective husband had

children by a previous marriage, otherwise he may divorce her in order to have children

(M. Yeb. 24.1; Yeb. 61a). Later authorities would simply permit such a marriage to

stand. We, however, are dealing with a situation in which either the lack of sexual

development has been corrected and the individual has been provided with a sexual identity, or

the psychological makeup of the individual clashes with the physical characteristics, and this has

been corrected through surgery. In other words, our question deals with an individual who now

possesses definite physical characteristics of a man or a woman, but has obtained them through

surgical procedure and whose status is recognized by the civil government. The problem before

us is that such an individual is sterile, and the question is whether under such circumstances he

or she may be married. Our question, therefore, must deal with the nature of marriage for such

individuals. Can a Jewish marriage be conducted under these circumstances? There

is no doubt that both procreation and sexual satisfaction are basic elements of marriage as seen

by Jewish tradition. Procreation is considered essential as already stated in the Mishnah:

“A man may not desist from the duty of procreation unless he already has children.” The

Gemarah to this concludes that he may marry a barren woman if he has fulfilled this

mitzvah; in any case, he should not remain unmarried (Yeb. 61b). There was a difference

between the schools of Hillel and Shammai about what is required to fulfill the mitzvah of

procreation; tradition followed Hillel who minimally required a son and a daughter, yet the Codes

all emphasize the need to produce children beyond that number (M. Yeb. 6.6; Ket. 8a;

Yeb. 61b; Tos. Yeb. 8; Yeb. 8; Yad Hil. Ishut 15.16, etc.) The sources also

indicate that this mitzvah is only incumbent upon the male (Tos. Yeb. 8), although

some later authorities would include women in the obligation, perhaps in a secondary sense

(Arukh Hashulhan, Even Haezer 1.4; Hatam Sofer, Responsa, Even Haezer #20).

Abraham Hirsh (Noam, Vol. 16, 152 ff) has recently discussed the matter of granting a

divorce when one party of a married couple has had a transsexual operation. Aside from

opposing the operation generally, he also stated that no essential biological changes had taken

place and that the operation, therefore, was akin to sterilization (which is prohibited) or cosmetic

surgery. Hirsh also mentioned a case related to our situation; a male in the time of R.

Hananel added an orifice to his body, and R. Hananel decided that a male having intercourse

with this individual had committed a homosexual act. This statement was quoted by Ibn Ezra in

his commentary on Lev. 18.22. We, however, are not dealing with this kind of situation, but with

a complete sexual change operation. Despite the strong emphasis on procreation,

companionship and joy play a major role in the Jewish concept of marriage. Thus, the seven

marriage blessings deal with joy, companionship, the unity of family, restoration of Zion, etc., as

well as with children (Ket. 8a). These same blessings are to be recited for those beyond the

childbearing age or those who are sterile (Abudraham, Birkhot Erusin,

98a). Most traditional authorities who discuss childless marriages were considering a

marriage already in existence (bediavad), and not the entrance into such a union. Under

such circumstances, the marriage would be considered valid and need not result in divorce for

the sake of procreation, although that possibility existed (Shulhan Arukh Even Haezer 23,

see Isserles’ note to 154.10). This was the only alternative solution since bigamy was no longer

even theoretically possible after the decree of Rabbenu Gershom in the eleventh century in

those countries where this decree was accepted; we should remember that Oriental Jews did not

accept the herem of Rabbenu Gershom. Maimonides considered such a marriage valid

under any circumstances (Yad Hil. Ishut 4.10) whether this individual was born sterile or

was sterilized later. The commentator Abraham di Boton emphasized the validity of such a

marriage if sterility has been caused by an accident or surgery (Lehem Mishneh to

Yad Hil. Ishut 4.10). Yair Hayim Bacharach stated that as long as the prospective wife

realized that her prospective husband was infertile though sexually potent, and had agreed to the

marriage, it was valid and acceptable (Havat Yair #221). Traditional halakhah

which makes a distinction between the obligations of men and women (a distinction not accepted

by Reform Judaism) would allow a woman to marry a sterile male since the obligation of

procreation do not affect her (as mentioned earlier). There was some difference of

opinion when a change of status in the male member of a wedded couple had taken place. R.

Asher discussed this, but came to no conclusion, though he felt that a male whose sexual organs

had been removed could not contract a valid marriage (Besamim Rosh #340 – attributed

to R. Asher). The contemporary Orthodox authority, E. Waldenberg, assumed that a sexual

change has occurred and terminated the marriage without divorce (Tzitz Eliezer, X, #25).

Joseph Pellagi came to a similar conclusion earlier (Yosef et Ahab

3:5). Perhaps the clearest statement about entering into such a marriage was made by

Isaac bar Sheshet who felt that a couple is permitted to marry and then should be left alone,

although they entered the marriage with full awareness of the situation (Ribash #15;

Shulhan Arukh Even Haezer 1.3; see Isserles’ note). Similarly, traditional authorities who

usually oppose contraception permit it to a couple if one partner is in ill health; the permission is

granted so that the couple may remain happily married, a solution favored over abstinence

(Mosheh Feinstein, Igrot Mosheh, Even Haezer #63 and #67; he permits marriage under

these circumstances). Our discussion indicates that individuals whose sex has been

changed by a surgical procedure, and who are now sterile, may be married according to Jewish

tradition. We agree with this conclusion. Both partners should be aware of each other’s condition.

The ceremony need not be changed in any way for the sake of these individuals.September

1977

If needed, please consult Abbreviations used in CCAR Responsa.