Gender Altering Surgery

This is an article from Rav Bleich published in 1977.


Transsexual Surgery



Transsexuals are persons who are born with the anatomy of one sex but suffer from an identification with the other sex which in many instances is total and lifelong. It is claimed by some scientists doing research in this area that this abnormality is the result of hormone disturbances which are quite likely prenatal in origin. In a rapidly increasing number of cases transsexualism is now being treated medically by a combination of hormone therapy and sex-change surgery. While such operations were performed in Europe on an intermittent basis as early as 1930, sex-change operations have become prevalent in our country only since the late 1960s. There are an estimated ten thousand transsexuals in the United States, of whom approximately fifteen hundred have changed their sex by means of surgery. Public awareness of this phenomenon has been heightened by the recent publication of Conundrum, an autobiography by Jan (formerly James) Morris, in which the author discusses his own transsexualism with skill and sensitivity.



The growing acceptance of transsexual surgery has made the question of sex-change a topical halakhic issue. A number of rather cursory items dealing with this topic, which are noteworthy primarily on account of the sources cited, have appeared in the 5733 volume of No'am and in the Kislev-Tevet and Tammuz-Av 5733 issues of Ha-Ma'or. These articles do not treat the unique halakhic problems of hermaphrodites or of individuals born with ambiguous genitalia.



Sex-change operations involving the surgical removal of sexual organs are clearly forbidden on the basis of the explicit biblical prohibition, "And that which is mauled or crushed or torn or cut you shall not offer unto the Lord; nor should you do this in your land" (Lev. 22:24). Sterilization of women is also prohibited, as recorded in Even ha-Ezer 5:11.



Rabbi Meir Amsel (Ha-Ma'or, Kislev-Tevet 5733) notes that yet another prohibition is also applicable to sex-change procedures, a consideration which may extend as well to hormone treatment for purposes of sex-change. The commandment "A woman shall not wear that which pertains to a man, nor shall a man put on a woman's garment" (Deut. 22:5) is not limited to the wearing of apparel associated with the opposite sex but encompasses any action uniquely identified with the opposite sex, proscribing, for example, shaving of armpits or dyeing of hair by a male. A procedure designed to transform sexual characteristics violates the very essence of this prohibition.



Once a sexual transformation has actually been effected, a host of practical halakhic questions arise. The resolution of these questions hinges upon the crucial conceptual problem of whether or not a change of sex has indeed occurred from the point of view of Halakhah. It should be emphasized that while sexual organs can be removed, medical science is (at least as yet) incapable of substituting functional reproductive organs of the opposite sex. Sex-change procedures involve the construction of simulated sexual organs devoid of reproductive powers.



The most obvious halakhic questions concern the sexual status of such individuals with regard to marriage and divorce and with regard to their status vis-à-vis the respective obligations of men and women in the performance of mizvot. A related question is discussed by Teshuvot Besamim Rosh, a work of questionable authenticity commonly attributed to Rabbenu Asher. Besamim Rosh, no. 340, questions whether a man whose genitalia have been completely removed need divorce his wife in order to dissolve their marriage or whether a divorce is unnecessary since the male has been sexually transformed, and hence "a new body has appeared and is comparable to a woman's." Besamim Rosh reaches no definitive conclusion with regard to whether or not a divorce is necessary in the event that the operation is performed subsequent to entry into a valid marriage. However, Besamim Rosh strongly asserts that, regardless of an individual's sexual status with regard to other matters, once the male sexual organs have been removed the person in question is no longer competent to contract a valid marriage as a man.8R. Aryeh Leib Grossnass, Lev Aryeh, II, no. 49, takes exception to both the reasoning and the ruling of Besamim Rosh. R. Grossnass does, however, express doubt with regard to the necessity for a bill of divorce on the basis of Minḥat Ḥinukh, no. 203, but contends that for all other purposes, transsexual surgery has no effect upon sexual identity insofar as Halakhah is concerned. Although not stated explicitly, it may be assumed, according to Besamim Rosh, that such a person is also unqualified to contract a marriage as a woman since true female genital organs remain absent even subsequent to successful completion of the surgical procedure.



For Besamim Rosh sexual identity, insofar as marriage is concerned, depends entirely upon the presence of genital organs. No mention is made of the presence or absence of secondary sexual characteristics and indeed it is not difficult to understand why they are deemed irrelevant. Hence, despite the comments of Rabbi Amsel, who asserts that secondary sexual characteristics play a role in sexual identification, there is no evidence that the transformation of secondary sexual characteristics affects sexual status in any way.



One contemporary authority has ruled, without citing the ambivalent attitude of Besamim Rosh, that no divorce is necessary in order to permit the remarriage of a woman whose husband has undergone a sex-change operation. Rabbi Eliezer Waldenberg, Ẓiz Eli'ezer, X, no. 25, chap. 26, sec. 6, argues that if the person in question can no longer contract a marriage as a male (as indeed is the stated position of Besamim Rosh), the emergence of such a condition automatically terminates any existing marriage. The Gemara, Yevamot 49b, declares that although a husband is obliged to divorce an adulterous wife and is not permitted to remarry her, nevertheless, should he subsequently enter into such a marriage, the marriage is, post factum, deemed valid and must be dissolved by means of a divorce. Rashi and Nemukei Yosef, ad locum, explain that the marriage, when contracted, must be deemed valid, as evidenced by the fact that the original marriage is not automatically terminated upon the commission of adultery by the wife. The clear inference is that if Halakhah recognizes the continued existence of a previously contracted marriage despite a change in pertinent circumstances, a newly contracted marriage under the same circumstances is also valid. Conversely, if under the new circumstances a marriage cannot be contracted, it follows that an already existing marriage must be deemed to have been terminated automatically upon emergence of the new situation.9This argument was originally advanced by Minḥat Ḥinukh, no. 203, in explanation of an intriguing position taken by Terumat ha-Deshen, no. 102. Terumat ha-Deshen questions whether the wife of the prophet Elijah was permitted to remarry. According to tradition, Elijah neither died nor divorced his wife but ascended to heaven bodily. Terumat ha-Deshen rules that Scripture forbids man to cohabit with “the wife of his fellow” but does not forbid the wife of an angel. (Cf., however, R. Shlomoh Kluger, Ḥokhmat Shlomoh, Even ha-Ezer, no. 17, who differs. See also R. Elchanan Wasserman, Koveẓ Shi‘urim, II, no. 28.) Minḥat Ḥinukh explains, on the basis of the previous argument, that since an angel cannot contract a marriage, a marriage to a man who becomes an angel is automatically terminated. (For a different explanation, see Teshuvot Mahari Asad, Even ha-Ezer, no. 4. See also Lev Aryeh, II, no. 49.)
R. Waldenberg, Ẓiẓ Eli‘ezer, X, no. 25, chap. 26, sec. 6, and XI, no. 78, maintains that surgical reversal does effect a change in sexual identity in the eyes of Halakhah. He therefore argues that just as cohabitation is forbidden with the wife of his fellow but not with the wife of an angel, so also the concept of the wife of his fellow excludes the concept of the wife of a woman. Unlike Besamim Rosh, Rabbi Waldenberg is of the opinion that the surgical removal of male sexual organs effects a change in sexual identity in the eyes of Halakhah. Rabbi Waldenberg, however, cites no evidence whatsoever for this view.

[But see volume 22 of Tzitz Eliezer where he says that such a person is an אנדרוגינוס].

There is at least one early source which apparently declares that a male cannot acquire the status of a woman by means of surgery. Rabbi Abraham Hirsch (No'am 5733) cites the comments of Rabbenu Chananel, quoted by Ibn Ezra in his commentary on Leviticus 18:22. Rabbenu Chananel declares that intercourse between a normal male and a male in whom an artificial vagina has been fashioned by means of surgery constitutes sodomy. This would appear to be the case, according to Rabbenu Chananel, even if the male genitalia were removed.10It might be argued against R. Hirsch that citation of Rabbenu Chananel is not conclusive in showing that Halakhah does not recognize reversal of sexual identity. The situation depicted by Rabbenu Chananel, after all, refers to a homosexual act with a male in whom an artificial orifice has been constructed; Rabbenu Chananel clearly does not describe a situation in which sex reversal has also been undertaken by means of removal of the male genitalia. Nevertheless, in context, the argument has not lost its cogency. If surgical changes in sexual identity are recognized for purposes of Halakhah, it would stand to reason that just as male-female changes effect a change in sexual identity, the construction of female organs, when unaccompanied by removal of male organs, should similarly be recognized as effecting a change in sexual identity from male to hermaphrodite. Rabbenu Chananel, as is evident from the text of these remarks, does not view penetration of the female organ of a hermaphrodite by a male as constituting a homosexual act (although he does allow for such a position in subsequent remarks). Yet, according to Rabbenu Chananel, intercourse via the artificially constructed vagina does constitute sodomy. This, then, indicates that the individual is regarded as a male rather than a hermaphrodite. Therefore it follows that if surgical procedures do not effect a change in status from male to hermaphrodite, such procedures cannot create a change of status from male to female in the eyes of Halakhah.



The corollary to this question arises with regard to a woman who has acquired the sexual characteristics of a male as a result of transsexual surgery. A nineteenth-century author, R. Yosef Pelaggi, Yosef et Eḥav 3:5, opines that no divorce is necessary in order to dissolve a marriage contracted prior to such transformation. This author goes beyond the position of Besamim Rosh, who, as noted, did not reach a definitive conclusion in his discussion of the parallel question with regard to sex change in a male. In opposition to R. Pelaggi's view it may, however, be argued that gender is irreversibly determined at birth and that sex, insofar as Halakhah is concerned, cannot be transformed by surgical procedures. This position is particularly cogent in view of the fact that fertile organs of the opposite sex cannot be acquired by means of surgery. The view that sexual identity cannot be changed by means of surgery would appear to be the position of Rabbenu Chananel. According to Rabbenu Chananel, this principle would appear to govern all halakhic questions pertaining to sexual identity.



Parenthetically, it is of interest to note that various courts in the United States have ruled that, in the eyes of the law, surgery to transform genitalia has no effect upon the gender of the person upon whom such procedures are performed (Anonymous v. Anonymous, 67 Misc. 2d 982; Baker v. Nelson, 291 Minn. 310, 191 N.W. 2d 185; 409 U.S. 810, 93 Supreme Court, 37; Jones v. Hallahan, Ky., 501, S.W. 2d 588). Recently, a justice of the New York State Supreme Court ruled that a woman who underwent surgery to become a man and subsequently married could not seek a divorce since a valid marriage had, in fact, never existed. The decision states that a marriage contract entered into by individuals of the same sex, one of whom has undergone sex-reversal surgery, has no validity either in fact or in law (New York Law Journal, April 30, 1974, p. 17, col. 4).



Another interesting question arises with regard to circumcision. In female-to-male transformations a simulated male organ is often created by means of skin grafts and silicone forms. In some cases this effect is achieved by freeing the clitoris from its connective tissue. There is no question that this newly fashioned organ need not be circumcised. This is abundantly clear from the conclusion reached by She'elat Ya'avez, I, no. 171, in the discussion of a similar question arising with regard to a congenital defect. Yosef et Eḥav cites the comments of Yad Ne'eman, who maintains that circumcision would be unnecessary even if the new organ were physiologically similar to that of a male in every respect. In the opinion of the latter authority, the phraseology employed by Scripture, "uncircumcised male" (Gen. 17:13), applies solely to an individual who is a male at the time of birth.



A peripheral halakhic question which arises in cases of sexual transformation concerns which of the blessings included in the morning service should be recited by an individual who has undergone a transsexual procedure. Is the person in question to recite the blessing "Who has not made me a woman" or the blessing "Who has made me in accordance with His will"? The question is a compound one involving two separate issues. The first question is identical with the issue previously discussed: Is the individual's gender deemed to have been changed or is it deemed to have remained unchanged? Secondly, assuming that surgical transformation is to be recognized as indeed having effected a transformation from the point of view of Halakhah, there exists a halakhic controversy with regard to whether the blessings to be recited each morning are determined by the individual's status at birth or by his status at the time the blessings are pronounced. This difference of opinion is reflected in the controversy with regard to the recitation of the blessing "Who has not made me a gentile" by a proselyte. Rambam maintains that since the convert was born a gentile, it follows that he cannot truthfully pronounce the blessing "Who has not made me a gentile." Rashi disagrees and maintains that the blessing is fundamentally an expression of thanksgiving for being bound by the commandments of the Torah incumbent upon members of the Jewish faith and hence may be pronounced by the proselyte, since at the time of the recitation of the blessing he is indeed a Jew and subject to all mizvot. The blessings "Who has not made me a woman" and "Who has made me in accordance with His will" reflect the differing status of men and women with regard to the performance of mizvot. Hence, if the surgical transformation effects a change in the eyes of Halakhah, the proper blessing should, according to the opinion of Rashi, reflect the changed status, whereas, according to the opinion of Rambam, the usage "Who has made" or "Who has not made" in this context would express a falsehood.



It has been suggested that the entire question may be obviated by composing a text which would be more appropriate to such situations. According to this view, the proper blessings would be "Who has transformed me into a male" and "Who has transformed me in accordance with His will." Quite apart from the unwarranted assumption regarding divine approbation implied by this phraseology, it may be objected that in the absence of any liturgical formulation pertaining to "transformation" the proposed texts do not constitute rabbinically ordained formulae and hence cannot serve as valid substitutes for statutory blessings.
Although Judaism does not sanction the reversal of sex by means of surgery, transsexualism is a disorder which should receive the fullest measure of medical and psychiatric treatment consistent with Halakhah. Transsexuals should be encouraged to undergo treatment to correct endocrine imbalances, where medically indicated, and to seek psychiatric guidance in order to alleviate the grave emotional problems which are frequently associated with this tragic condition.