NYP no. 5769.6

CCAR RESPONSA

5769.6

Circumcision of a Transgender Female

She’elah

I have worked with a woman in her late twenties this past year to prepare her for conversion and found her to be an excellent candidate. Late in the process, but before the conversion ceremony, she revealed to me that her sex assignment at birth was male and that she had been living a life of gender ambiguity from childhood. About two years before I met her, she chose to live exclusively as a woman. She sought and received legal status as a woman from the Commonwealth of Massachusetts, a process which requires certification of mental health by suitable professionals. She has begun and continues female hormone therapy. She has not had sex reassignment surgery and such surgery may or may not be part of her future. She has uncircumcised male genitalia.

I considered whether I would ask her to undergo milat gerim (circumcision for proselytes) as part of her conversion process. I concluded that I would not require milah in her case because her entire involvement with the synagogue, her very identity within the Jewish community, has been as a woman. I accept her gender as female and, of course, milah is not required of women. I have several questions for the Committee. What standards should Reform rabbis and congregations apply to accepting the gender assignment of members of our communities and those who wish to attach themselves to our communities? To the extent that we regard a requirement of milah and hatafat dam berit to be under the purview of rabbinic authority, should we require them of transgender women with male genitalia? What is the attitude of Jewish law, as understood in a Reform context, toward transgender people in general? In the past, the mental health of transgender people has been regarded as suspect by society in general and, on at least one occasion, by the Responsa Committee.[1] Have changes in medical understanding of gender identity and the social acceptance of transgender people affected the ways in which we apply Jewish law? (Rabbi Jeffrey Goldwasser, North Adams, MA)

Teshuvah

We want to divide your query into two separate questions. The first of these concerns our general attitude toward the issue of “transgender” and of the position of transgender people in our community. The second deals with the more specific issue that you resolved in this case: should a Reform rabbi who normally requires circumcision for male converts[2] insist upon that requirement when the candidate is a transgender female?

1. On Transgender. “Transgender,” as defined by the American Psychological Association, “is an umbrella term used to describe people whose gender identity (sense of themselves as male or female) or gender expression differs from that usually associated with their birth sex.”[3] Our attitude concerning transgender has undergone a significant change during the last several decades. Our general approach to the subject, however, has remained constant: we have turned to science, in particular to the mental health professions, to learn about a phenomenon that, to say the least, has been imperfectly understood. There was a time, not so long ago, when most scientists held that transgender people suffered from a mental or psychological illness. To this day, the authoritative fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) defines “a strong and persistent identification with the opposite gender” as Gender Identity Disorder (GID), which like all other disorders involves a specific etiology, set of symptoms, and course of treatment.[4] This theme has not entirely disappeared from the public discourse over transgender. As you note, at least some units of government continue to require “certification of mental health by suitable professionals” before persons can be legally accepted as belonging to a gender opposite from their birth sex. Previous Reform responsa on the subject reflected this broad scientific consensus. In recent years, GID has become the focal point of a growing controversy, with many mental health professionals arguing that a difference between a person’s gender identity and his or her birth sex does not in and of itself constitute a “disorder.”[5] As of this writing, the DSM is undergoing a revision, and it is quite possible that “Gender Identity Disorder” will either disappear entirely or be substantially redefined in its next (fifth) edition.

Whatever the outcome of that controversy, its very existence affords us the opportunity to rethink the “general approach” described above. What we now know about transgender persuades us that we should consider it not as a scientific or bioethical issue[6] but as a personal and communal one. Our stance is not to be determined by the findings of mental health professionals but by our understanding of our religious duty as Jews. In other words, the question we should ask is not whether transgender is a “disorder” but rather how does Torah teach us to respond to transgender persons as human beings and as members of the Jewish people?

When we search for guidance in our texts, we find something of a parallel to the transgender person: the androgynos, the individual who (as the Greek term suggests) displays both male and female physical characteristics. We read in Mishnah Bikurim 4:1 that the androgynos is classified in some respects as a male, in some respects as a female, in some respects as both, and in some respects as neither. The rest of that chapter[7] works out the details that give life to these general statements, charting the ritual and legal status of the androgynos and defining that person’s role and duties under the halakhah. The Rabbis, it seems, were aware that not every individual falls clearly within the established gender boundaries, and the category of androgynos served as a special designation encompassing those who straddle the lines. To put this another way, although the traditional Jewish world view presumes the existence of two genders and assigns many religious and ritual responsibilities accordingly, the Sages found a place for this person, who otherwise would not fit within their conceptual world. To us, the great message of these texts is the duty of inclusion: like the Rabbis, we, too, are obligated to find a place within our midst for the outsider, the Jew who does not seem to fit within the established boundaries and social categories upon which our communities are normally based.

On the other hand, the parallel is not absolute; the androgynos is not “transgender.” The Rabbis had no concept of “gender,” understood as a personal sense of identity separate and apart from birth sex. In Rabbinic thought, a person’s sex assignment is that person’s gender; it is an empirical fact, established by the physical signs (the genitalia) that ordinarily associate us as either male or female. The problem is that, because the androgynos displays both male and female genitalia, his/her sex assignment – for the Rabbis, the same thing as “gender” – cannot be determined through empirical observation. And the Rabbis must find a way to make that determination, since one’s gender establishes many of one’s obligations under traditional Jewish law. Hence the debates in the halakhic literature over the nature of the androgynos: is this person a male, a half-male/half-female, or a separate gender that is neither male nor female?[8] The predominant view is that the androgynos is a case of safek, of factual doubt: perhaps male, perhaps female,[9] so that his/her ritual and legal status is set accordingly.[10] By contrast, the individual of whom you speak in your she’elah is in the eyes of Talmudic law unquestionably male and would bear all the responsibilities of a male under the traditional halakhic system.

For Reform Jews, committed to the principle of gender equality, this debate holds little practical significance. We differ from the Rabbis and from contemporary Orthodox Judaism in that, in our communities, men and women perform the same ritual roles. We therefore have no need as a community to determine the “correct” gender of any individual or to question any person’s expressed gender identity. We accept the person as that individual presents him- or herself, as male, female, or transgender. The person of whom you speak has chosen “to live exclusively as a woman.” That choice, which determines her gender identity, is enough for us, we accept her accordingly. Upon her conversion she will be “a Jew in all respects”;[11] our concern, quite simply, is to welcome her into the midst of the community of Israel.

2. Circumcision for a Transgender Female Jew by Choice. The fact that we accept this person as a woman, however, does not necessarily answer our second question. You waived the requirement of milat gerim in this case on the grounds that “milah is not required of women.” That decision assumes that gender identity, the person’s subjective sense of self, is the determining factor in this question. In our view, however, the objective fact of birth sex is the more compelling consideration. While the Biblical sources of this mitzvah (Genesis 17:10-11 and Leviticus 12:2-3) make it clear that only a male (zakhar) is to be circumcised, they describe the essence of that ritual as the removal of the foreskin (basar orlato). This individual, who possesses a foreskin, is therefore a member of that group of people who are subject to this ritual. Let us be clear: we accept this individual as a female because she presents herself as such and because we understand today – as few could possibly have imagined until very recently in human history – that one’s gender identity is not automatically determined by one’s birth sex. But the objective reality of her birth sex (which, as we have seen, is a very different thing from “gender identity”) does make her one of those who according to our tradition are to carry ot berit, the sign of the covenant of Abraham and of Sinai.[12] Had she undergone sex reassignment surgery prior to her conversion – in other words, had she altered that objective reality through surgical means to bring her sex in line with her gender identity – circumcision would obviously not have been required of her.[13] In the absence of that surgery, we are persuaded that the better response is to urge milah in cases such as this.

The above reflects our deep devotion to the mitzvah of circumcision[14] as a powerful act of Jewish identity that links our modern-day community to the earliest generations of our people. There is no reason in principle to exclude a person from the opportunity to participate in this mitzvah simply because she is transgender. We should recall that the Rabbis, in their efforts to determine the status of the androgynos, included that individual in the community of those who are to be circumcised.[15] We Reform Jews are at our best when we, too, practice the policy of inclusion, and we should remember that as we work to find a place for transgender people within our own religious community.[16]

NOTES

 

 

  • The Central Conference of American Rabbis (CCAR) has held since 1893 that the traditional conversion rites are non-obligatory. See CCAR Yearbook 3 (1893), p. 36, reprinted in American Reform Responsa (ARR), no. 68, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=68&year=arr. This resolution has never been repealed by the CCAR, but it has been modified by Divrei Giyur (see below in this note) and by a number of Reform responsa. See our responsum no. 5756.13, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5756 , particularly at notes 35-36, for references to these responsa. 5756.13 also offers a detailed critique of the scholarship adduced in support of the 1893 resolution. Meanwhile, over the past several decades the stance of our movement toward those rites has become much more positive. Today, many Reform rabbis require milat gerim, circumcision for adult male converts. See Divrei Giyur: Guidelines for Rabbis Working with Prospective Gerim, adopted by the Central Conference of American Rabbis, June, 2001, section 8b; http://ccarnet.org/Articles/index.cfm?id=215&pge_prg_id=3818&pge_id=1637 (accessed January 26, 2010).

 

 

 

  • See the American Psychological Association’s Answers to Your Questions (note 2, above): “This diagnosis is highly controversial among some mental health professionals and transgender people. Some contend that the diagnosis inappropriately pathologizes gender variance and should be eliminated.” A psychological condition, in this view, is to be characterized as a disorder “only if it causes distress or disability.” On the efforts to insure that the next edition of the DSM omits GID, see Lois Wingerson, “Gender identity Disorder: Has Accepted Practice Caused Harm?” Psychiatric Times, May 19, 2009, http://www.psychiatrictimes.com/display/article/10168/1415037?verify=0 (accessed January 18, 2009).

 

  • As an example, see our responsum no. 5757.2: “In Vitro Fertilization and the Status of the Embryo” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5757 ): “given our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments” (italics in original). In this case, the attitude we take toward transgender people is based upon an ethical rather than a “scientific” judgment.

 

  • Scholars doubt that the fourth chapter of M. Bikurim formed part of the original Mishnah. While present in some manuscripts and printed editions, it is missing from others. Its contents appear to have been taken from Tosefta Bikurim 2:3-7. See Yaakov N. Epstein, Mavo lenusach hamishnah (Jerusalem: Magnes, 1948), 976, and Chanokh Albeck’s comments in his edition of the Mishnah (Tel Aviv-Jerusalem: Mosad Bialik-Devir, 1957), vol. 1, 307.

 

  • This latter is the opinion of R. Yose in Tosefta Bikurim 2:7: “the androgynos is in a unique category (beriyah le`atzmo).”

 

  • This is the position of Maimonides (Yad, Milah 3:6; Ishut 2:24; Nezirut 2:11; Chagigah 2:1, and elsewhere) and the Shulchan Arukh, Orach Chayim 331:5 (see Mishnah Berurah ad loc., note 18). Other authorities hold that the androgynos is half-male and half-female, and some describe him/her as a third gender, neither male nor female. See Encyclopedia Talmudit, 2:54ff.

 

  • For example, the androgynos observes all positive ritual commandments that, because they are dependent upon the time of day or of the year, are traditionally incumbent upon men and not upon women. The androgynos observes them because he/she is possibly a male and therefore commanded to do so. By the same token, the androgynos does not recite the benediction over the performance of these mitzvot, because he/she is possibly a female and therefore not commanded to observe these mitzvot. Yad, Avodah Zarah 12:4 and Tzitzit 3:9. See at note 15, below.

 

  • Taval ve`alah harei hu keyisra’el lekhol devarav; B. Yevamot 47b.

 

  • See B. Keritot 9a: our male ancestors, the Rabbis taught, were required to undergo circumcision and immersion, while the women were required to undergo immersion, prior to the giving of the Torah. Today’s proselyte reenacts their experience when he or she enters the covenant.

 

  • A male proselyte whose penis has been severed requires only immersion (tevilah) in order to convert to Judaism; Tosafot, Yevamot 47b, s.v. derabbi yose; Shulchan Arukh Yoreh De`ah 268:

 

  • On berit milah as a mitzvah in Reform Judaism, see Simeon J. Maslin, Gates of Mitzvah (New York: CCAR, 1979), p. 14. On our evolving position with respect to milat gerim, see the sources in notes 10 and 11, above.

 

  • That the androgynos is circumcised is declared in Yad, Milah 1:7 and Shulchan Arukh Yoreh De`ah 262:3, on the basis of the sugya in B. Shabbat 135a. The authorities are in dispute as to whether the traditional berakhah (benediction) should be recited over that act. Rambam (Yad, Milah 3:6, in a ruling adopted by Shulchan Arukh Yoreh De`ah 265:3) holds that no benediction is recited because the androgynos is not unquestionably male (eino zakhar vada’i). R. Avraham ben David of Posquierres objects: the circumcision of an androgynos is a matter of uncertainty over an element of Torah law, and in all such cases of doubt we rule stringently (B. Beitzah 3b). Thus, a berakhah should be required (Hasagat Haravad, Milah 3:6).

 

  • We recognize, of course, that in any particular case the mara de’atra, the community rabbinical authority who supervises the conversion process, may judge the prospect of circumcision to be exceptionally difficult or stressful to a transgender female conversion candidate. We would support the rabbi’s decision not to demand circumcision of such a candidate as a proper application of the CCAR’s 1893 resolution on conversion rites (see note 2). We will not attempt to devise a precise formula to define the term “exceptionally difficult.” That is and must remain a matter left to the judgment of the mara de’atra, just as it is left to him or her to evaluate the motivations and sincerity of the prospective convert. In the latter case, says R. Yosef Karo, the decision must be left to the discretion of the authorities in charge (hakol lefi re’ut einei beit din; Beit Yosef to Tur, Yoreh De`ah 268). The same is true here.

 

If needed, please consult Abbreviations used in CCAR Responsa.

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