CONVERSION AND MARRIAGE AFTER TRANSSEXUAL SURGERY
She’ela
A man who is an applicant for conversion received extensive therapy at a recognized psychiatric institution that offers a sex- change psychotherapy program. Subsequently he underwent surgery; his male genitalia were removed and a cosmetic vagina was constructed. However, this having taken place he now had a change of heart and no longer desired to be a woman. Since he had never declared himself publicly or legally as a woman, he continued his status as a man and was later married in a civil ceremony to his financee, a Jewish woman who is satisfied to live with him permanently, despite his mutilated condition. She supports his desire to become a Jew. The couple have been attending Shabbat services regularly.
Question: Should we admit the 29-year-old person to the Jewish Information Course program established jointly by the Reform congregations in our city, holding out the likelihood that in the end there would be And if he is converted, should the rabbi sanctify the civil marriage through Kiddushinl Teshuva?
First of all, let us briefly look at the admissibility of sex change altogether. Since the Halacha regards the mitzvah of procreation as a chief purpose of marriage, the poskim forbade the removal of male genitalia in the androginos, the person who possesses both male and female genitalia. Even more so would they forbid the removal of genitalia from an otherwise normally-formed man who wishes to be a woman.
Exceptions were made only occasionally. Thus, Rabbi Eliezer Waldenberg permitted transsexual surgery (from male to female) in the borderline case of an infant whose external genitalia were those of a female, though chromosome analysis and the presence of a testicle showed that the gender might be male.9 According to Rabbi Waldenberg, the general rule is that the “visible, external organs” determine sexual identity, and in the case of X he would therefore not have allowed the surgery.
The issue before us is, however, not the permissibility of the surgery but rather, since it has already taken place, whether Kid- dushin may now be celebrated.
There is a good deal of halachic discussion of the question whether the marriage of a transsexual is still a marriage and whether gittin is necessary or redundant. When the operation has already taken place, most follow Rabbenu Asher who says that a man whose genitalia have been removed is no longer able to con- tract a valid marriage — even though his sexual identity may not be affected and he is still considered a man.10 The prohibition of the law in Deuteronomy 23:2, as interpreted by tradition, is deemed decisive.
Are there reasons why Reform Judaism might reach a different conclusion? There might be, for it would view the biblical passage differently. It would see it as a time-bound response to a particular situation, namely the use of castrated men in society and this original purpose of the law has fallen away.
In addition. Reform also would accept the findings of modern science, which holds that external genitalia may not reflect the true identity of the individual. Rabbi Solomon B. Freehof was therefore ambivalent and suggested that the rabbi be guided by the attitude of the community: if the state issues a license to a trans- sexual it may be assumed that his/her change has the recognition of the law and therefore Kiddushin may take place. Subsequently, a CCAR Responsa Committee which dealt with the matter in some detail also allowed sex change as a permissible procedure and did not object to Kiddushin.13
Despite these precedents in our movement, we remain troubled about the matter. The sho’el notes that X received the best avail- able scientific and psychological advice before his transsexual surgery was effected. May we therefore assume that there was medical evidence that X’s chromosomes showed that he was genetically a female, or that his hormone functions made him more female than male? In some institutions that deal with per-sons such as him there is a period during which the patient receives hormonal treatment and lives for a while as a woman. Only when the results of this trial period are conclusive is the surgery performed.
Was this done in X’s case and was his preference for femaleness psychologically founded? The answer is not available to us and may not be available to the rabbi either. Still, we have to believe that no reputable institution would have proceeded with the sur- gery had there not been sufficient indications that strong female characteristics were in evidence. We would therefore consider the presumption of X’s maleness to have been seriously weakened and would advise the rabbi not to proceed with Kiddushin, should X be converted to Judaism.
Of course, even though no wedding is performed, we assume that X will be treated with all the compassion and concern that such a tormented individual desperately requires.
The question of giyur. Deuteronomy 23:2 states: “ yavo pet- sua daka ucherut shofcha bikehal Adonai,” which the JPS transla- tion renders as “No one whose testes are crushed or whose mem- ber is cut off shall be admitted into the Congregation of the Lord.” This would appear to exclude the person in question (“X”) from membership in the Jewish people, but already Isaiah (56:3 ff) mit- igated the application of this rule when he spoke of God having special regard for the saris. Subsequently, rabbinic tradition understood the intent of “lo yavo … bikehal” to be that such a man should not marry an Israelite woman, while his status as a Jew was not affected.
There is therefore no objection in principle to the conversion of a person whose genitalia are mutilated or missing altogether, even when he is a seris adam, one whose mutilation was effected by human hand and not by birth or illness ( chama). In these cases, immersion alone suffices for giyur. We see no reason to depart from this view and therefore hold that X’s desire to become a ger has to be treated on its own merits.
The question then arises whether X, with his history of identity problems, is qualified as a prospective convert. Should we not have some concern about the mental stability of a person who, having undergone this radical and irreversible operation, now desires to be a man after all?
The Rambam deals with a convert who has been admitted with- out proper examination or instruction in the mitzvot.3 But since the error has been made, he says, his conversion is deemed valid ex post facto, bedi’avad, though one should be troubled about the person until his sincerity is fully established. The Rambam oper- ates here on the principle of chazaka, and thus, once giyur has taken place the presumption is in favor of the ger.4 But before the event, lechatechila, it is different, for the fitness of the prospec-
five convert should be most carefully considered.
Rabbi Walter Jacob issued a teshuva on the question how the mental competency of a convert might be assessed, and cautioned that “we cannot accept individuals who do not meet these prereq- uisites [of mental competency] .”
In the case before us, when could it be said that X has shown that his intention to become a Jew is firm and not likely subject to reversal? As a minimum we suggest a cautionary waiting period, like the traditional cycle of three Pilgrim Festivals (which waiting period applies in other cases). Since the conversion program in the sho’eVs city lasts for eight months, let X enter the course but
let him also be informed that, upon conclusion of the program, there would be a further time span, say a year, after which the beit din would rule on his admissibility to giyur.
While this is the majority opinion of the Committee on Respon- sa, other members disagree and would not admit X to the program at all. They would consider X as a person who has already shown his instability in a matter that fundamentally affects his physical identity. They would not wish conversion to be another stage of the person’s psychiatric meandering. The majority, as indicated, would leave the matter to the discretion of the beit din.
Should the rabbi officiate at X’s marriage? The question of admissibility to Kiddushin is different from that of admissibility to giyur. In the latter, it is not necessary to deal with a presumption of X’s maleness ( chezkatzachar) because we convert X as a human being and not as either a male or a female. But in Kid- dushin the chazaka may not be sufficient, and additional matters need to be considered.
CCAR Committee on Responsa W. Gunther Plaut, Chair Mark Washofsky, Vice Chair Judith Zabarenko Abrams Richard A. Block A. Stanley Dreyfus Walter Jacob Peter S. Knobel Dow Marmur Richard Rosenthal Louis J. Sigel Moshe Zemer Samuel E. Karff Joseph B. Glaser, Elliot L. Stevens