A recent ruling by the Haifa beit din underscores the need for rabbinical courts to reexamine the halachic status of transgender individuals with deference to the individual’s new reality.
In the case before the beit din, an individual who had undergone sexual reassignment surgery to become a woman refused to give her divorcing wife a gett, claiming that she was prohibited from doing so on the basis that a woman cannot give a gett. The individual’s wife requested an annulment of the marriage because the individual was no longer a man. The court denied the request, asserting that despite the surgery, the individual was still halachically a man. The court ordered the individual to give the gett, to which she eventually agreed.
By the court’s reasoning, a transgender man could not be barred from entering a women’s mikvah, as he is still halachically a woman. A mesader kiddushin would have no ostensible basis to refuse to officiate a wedding between the same transgender man and another man, as the former is still halachically a woman. And yet, imagine if either of these scenarios actually materialized. The transgender man would be barred from the women’s mikvah, and would also be barred from marrying another man. The transgender man’s present and former gender would both be denied.
U.S. courts have uniformly recognized the new gender of an individual who has undergone gender reassignment surgery since the issue first presented itself over forty years ago. In M.T. v. J.T., 140 N.J. Super. 77 (N.J. Super. Ct. App. Div. 1976), the Appellate Division of the Superior Court of New Jersey addressed the claim of M.T., an individual who was born a male and transitioned to a female, that she was entitled to support and maintenance from her divorced husband. Her husband claimed that he owed no support because their marriage was void, as M.T. had been born male, and New Jersey at the time prohibited same-sex marriages. The Appellate Division affirmed the trial court’s holding that “[t]he entire area of transsexualism is repugnant to the nature of many persons within our society. However, this should not govern the legal acceptance of a fact.” In other words, like it or not, transgender surgery changes an individual’s gender.
Awareness of, and education regarding, transgender individuals must continue to improve. Regardless, as the New Jersey court opined, personal judgments should not factor into the halachic recognition of the individual’s reassigned gender. Further, reality dictates that any halachic impermissibility of gender reassignment surgery cannot render the new gender void. To simply say that the surgery was halachically prohibited and so the transgender individual is now not a transgender individual leaves the individual without any recognized gender at all.
Dina Gielchinsky is a counter-terrorism lawyer living in Teaneck, New Jersey.
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