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.