[Avodah] [Areivim] ISRAEL: Transgender Husband Says He's Now A Woman And Can't Give A Get

[Lisa Liel via Avodah]

There are two relevant teshuvot by the Tzitz Eliezer. The first one is
in his lengthy teshuva on transplants, Volume X, Part 25, Chapter 26.
In section 6, after having finished the meat of the teshuva, he turns
to the question of "other significant/organic alterations of the body,
such as a person who changes from male to female, or vice versa."
I recommend you reading it in the original, rather than relying on
whatever summary I might provide.

However, in his survey of the halakhic literature on the question, he
brings a source that discusses whether Eliyahu's wife would have been
an agunah after he went up to Shamayim. The conclusion in that source
was that she would not, because while an eshet ish is forbidden, an
eshet mal'ach is not. The Tzitz Eliezer comments on this that it would
seem the same thing would apply in this case, because an eshet isha is
not either. Note that this seems to imply that he assumes that a person
who now appears to be male (having originally been female) or vice versa,
*is* what they appear to be. Otherwise, his comment makes no sense.

The second teshuva is in Volume XI, Part 78. It's a case of a child
who was born looking essentially morphologically female (that is, the
child appeared to have a vulva and vagina), but tested XY-male in its
chromosomes, and had testicular tissue in one of the labia. The question
was whether that tissue could be removed. So there were issues of (a)
what is the sex of the child halakhically, and (b) is there an issue of
sirus in removing the testicular tissue.

The Tzitz Eliezer writes: "The external sexual organs of the newborn in
question, as you have described, appear as those of a female, and it has
no external indications of male organs. Only the special examinations
[gene testing] showed that male cells were present. And therefore,
in my opinion, even if we were to leave it as it is, it would have the
status of a female, since the external organs which can be seen by the
naked eye are the determinant in Jewish law."

In the book Torah and Reason, by Rabbi Dr. Chaim Zimmerman, starting on
page 230, he talks about how the universe is divided into three domains of
size. "One, the world of the macrocosmos, the immense range and vastness
of the universe, the galaxies and the numbulae which involve infinite
distances of billions of billions of l ight years to reach their orbits,
so to speak. Two, the microcosmos, the orld of smallness, which a small
fraction of a billionth of a billionth of an inch is a great universe in
comparison to its infinite smallness. And three: the man-sized world,
where man perceives through his senses." He subsequently continues,
"The Halacha and its human practices, is given to man where man can do
all the Taryag Mitzvot with his 'bare hands.' His units of action are
the units of the man-sized world."

I first read this book decades ago, when I was in the process of becoming
observant, and it impressed me a lot. And this point stuck with me:
halakha doesn't care about the microscopic. If it isn't visible to the
naked eye, it isn't relevant. DNA isn't relevant. Chromosomes aren't
relevant. They can add information and perhaps tilt the balance of an
argument, but that's all. We don't ask whether paramecia are considered
dagim or chayot when it comes to determining their kashrut. Kashrut
doesn't apply to them, because they are invisible to the naked eye.

I do a lot of genealogy work when I have the chance, and I'm constantly
running across people who think that a DNA test that says they have X%
Jewish background means they're Jewish. I have to keep explaining to
them that we don't care about DNA. To the best of my knowledge, we
wouldn't even accept a DNA paternity test as proof of halakhic parentage.

So when the Tzitz Eliezer writes that "the external organs which can be
seen by the naked eye are the determinant in Jewish law", the first word
that comes to mind is "pshitta". But apparently it isn't so pashut,
because I keep hearing people raising the issue of chromosomes on this
subject.

While it wasn't mentioned here, another common argument I've heard
is that people who have undergone sex change surgery can't procreate,
and that this is evidence that they are not the sex they claim to be.
Leaving aside the obvious refutation of infertile people, I find that
argument particularly problematic, because it implies that if medical
science reaches the point where they *can* procreate, the arguer will
withdraw his objections, which is patently not the case.

There is a game called Whack-a-Mole, where you use a hammer to hit the
heads of mechanical moles, and each time you do, other moles pop out of
other holes. There's a variation of this game that I sometimes see being
used when it comes to this topic. I have seen people address the first
of the two teshuvot, and claim that it can't be used, because it's only
theoretical, and isn't being applied to a specific case. And at the
same time, I have seen people address the second of the two teshuvot,
and claim that it can't be used, because it only refers to a newborn
whose sex is being determined at that time. However, the two teshuvot
together make it fairly clear that both arguments are spurious.

Lastly, I'd like to address what Prof. Levine wrote: "one pesak does
not a halacha make". This is certainly true. However, Rav Eliezer
Yehuda Waldenberg z'l, author of the Tzitz Eliezer, was a *major* posek.
Considered at least on par with Rav Moshe Feinstein z'l in Israel, and an
expert in medical halakhot. While every single other psak or claim (it's
sometimes difficult to know which something should be categorized as)
that I have read, stating that sex change surgery has no halakhic effect
on a person's sex, gives no reason for the determination other than,
"Of course it doesn't", or "Because eww..." I don't think that's valid
halakhic reasoning (l'oniyut daati), and none of the people in question
are, to the best of my understanding, of the stature of R' Waldenberg.

Lisa