טרנסקסואליות בהלכה

from Prof. Steinberg’s Encyclopedia Hilkhatit Refuit (‘nituach hafichat hamin,’ vol. 4, pp. 609-12).

Surgery to change a person’s sex is performed in two situations: (1) in the case of an hermaphrodite, i.e., a person who has both male and female sexual organs and who, by means of surgery, can be given the external appearance of one gender; (2) surgery to change the sex of a person who from the biological point of view is either fully a male or fully a female. There are indeed people who are born with the anatomical and physiological characteristics of one sex, but who suffer from extreme dissatisfaction with their sexual identity and who feel a strong psychological need to identify with the other sex. Such persons wish to change their sex by using hormones and surgery. The frequency of this phenomenon is estimated to be about four per one million males and about one per one million females. Sex change can be accompanied by appropriate hormonal treatment and surgery so that a member of one sex can externally appear to be a member of the opposite sex. Such surgical procedures were first performed in Europe in the 1930s and in the U.S. in the 1960s. In the course of the years a variety of surgical procedures have been developed for both males and females.

There are a number of Torah prohibitions in surgery to change a male into a female: the prohibition of castration; the prohibition of crushing the testicles and penis; and the prohibition of cross-dressing, which pertains not only to dress but to any mode of conduct or activity which is specially related to the other sex.

The surgical procedure to change a female into a male is prohibited as an act of sterilization.

Following a surgical procedure to change a male into a female by removal of the testicles and penis, a man’s marriage is null and void and his wife may remarry without first being divorced. Similarly, after a surgical procedure to change a female into a male by contraction of a male organ, a woman’s marriage is null and void and her husband may remarry without first divorcing her. All the more are these individuals prohibited from marrying after transsexual surgery.

The opinion has been expressed that a man who has sexual intercourse with a person who was previously male but who has had female sexual organs constructed by plastic surgery is guilty of irregular intercourse, possibly homosexuality, and onanism.

A woman who has undergone transsexual surgery and appears to be a male need not be circumcised even if she has had male organs constructed.

This is so even with respect to her clitoris.

The authorities are divided regarding the status of a person who has undergone transsexual surgery. Some have written that the halakha establishes a person’s gender on the basis of his or her external appearance. It follows that transsexual surgery transforms a male into a female in the eyes of the halakha and that that person becomes exempt from the commandments which pertain only to men. Further, if the person were married, his marriage is annulled. The same principle applies when changing a female into a male. Others have written that surgery which changes external sexual appearance has no effect on the person’s halakhic status as it is clear that no biogenetic change has occurred and the change is merely external. Therefore, transsexual surgery does not change the patient’s status.

U.S. courts have established that transsexual surgery does not change the gender of the patient and that the patient retains his or her original sexual identity in legal matters including personal status.

In 1986 the Israeli Ministry of Health authorized transsexual surgery in Israel in public hospitals in cases where patients suffer from appropriate psychological problems, have lived with the sexual identity of the opposite sex for a period of at least two years, have received continued hormonal treatment, have undergone comprehensive multidiscipline evaluation, and have signed a special consent form.