Transsexuality

Question:

Can you give me some information on the halachic issues

involved with transsexuality?

Answer:

The following passage is excerpted from A . Steinberg,

“E ncyclopedia H ilchatit Refuit” (E ncyclopedia of Jewish M edical

E thics), 4:609-12 (“N ituach H afichat M in”).

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;1 (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.2 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.3 Sex change can be accompanied by appro-

priate 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 E urope 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;4 the prohibition

1. See “H erm aphrodite” in Encyclopedia H ilchatit Refuit (H eb.) 1:62b-63b.

2. This syndrome, called “transsexualism,” was first described by Caldwell in 1949. See

R oberto, L.G ., A rch Sex Behav 12 (5):445-473, 1983.

3. K uiper, A . J. et al., M ed Law 4:373; H oenig, J. and K enna, J. L. Br J Psychiatry

124:181, 1974; W alinder, J. Br J Psychiatry 119:195, 1971

4. See “Castration” in Encyclopedia H ilchatit Refuit (H eb.) 5:23-90.

of crushing the testicles and penis;5 and the prohibition of cross-

dressing,6 which pertains not only to dress but to any mode of

conduct or activity which is specially related to the other sex.7,8 The

surgical procedure to change a female into a male is prohibited as

an act of sterilization.9

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.10

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.11

The authorities are divided regarding the status of a person

who has undergone transsexual surgery. Some have written that the

halacha 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 halacha and that that person

becomes exempt from the commandments which pertain only to

men. 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.12

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

5. Cf. the opinion of R abbi Shlomo Z alman A uerbach (in “H ermaphrodite” in

Encyclopedia H ilchatit Refuit [H eb.] 1, note 154) according to whom there is no

prohibition in creating a situation of petsua daka in a male. A male who underwent

such a procedure, however, is prohibited from marrying.

6. D euteronomy 22:5.

7. M en and women ought not dress or behave like the opposite sex (N azir 59a). For

example, a man is prohibited from plucking out white hairs and leaving the black

(Shabbat 94b); women are prohibited from bearing weapons (N azir 59a). See further

details in Tur, Yoreh D e'ah 182. See R abbi M . A msel’s article in H a-M aor, Kislev-

Tevet 5733.

8. There are more prohibitions which prevent medical therapy: unnecessary

endangerment of life by surgery and anesthesia; self-injury; alteration of the facts of

nature; violating the Lord’s will.

9. See “Castration” in Encyclopedia H ilchatit Refuit (H eb.) 5:23-90

10. R av Y . S. E liashiv in Shvilei ha-Refu'ah 2:15 ff. See Resp. Tsits Eliezer 16:4 (sect. 1,

end).

11. See Resp. Sheilat Ya'avets 1:171; Resp. Yad N e'em an, quoted in Resp. Tsits Eliezer

10:25, ch. 26:6; Yosef et Ehav 3:5.

12. Resp. Tsits Eliezer 10:25, ch. 6:6. Cf. Resp. Besam im Rosh 340 which discusses this

issue without reaching a conclusion.

and her husband may remarry without first divorcing her.13 O thers

have written that surgery which changes external sexual appearance

has no effect on the person’s halachic 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.14

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.15

In 1986 the Israeli M inistry of H ealth 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 compre-

hensive multidiscipline evaluation, and have signed a special

consent form.16

13. Y osef Palache, Yosef et Ehav 3:5.

14. Resp. Yaskil A vdi 7, Even ha-Ezer 4; R av H irsch in N oam 16 (5733):152; Resp. Lev

A rieh 2:49; R av M . Steinberg in A ssia 1:144 ff.; N ishm at A vraham , Even ha-Ezer 44:3.

See also J. D . Bleich, Contemporary H alachic Problems 1:103 (note 10), who

discusses the morning blessing after transsexual surgery.

15. See J. D . Bleich, Contemporary H alachic Problems 1:104.

16. See H . Tsur et al. in H a-Refu'ah 116:509, 1989. See further B. Levi, M ikhtav la-

M ehabber 49 (Kislev-Tevet 5747):7.