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.