One of the biggest social changes that have taken place in recent years in the western world , together with the greater acceptance of homosexual lifestyles ( a topic for a different occasion but touched on briefly in our earlier post on lesbianism,) is the acceptance of “non-binary genders” or transgender identity.
This gives greater recognition to a small but vocal minority of people who see themselves as neither male nor female in the classical sense of biological features , but as a combination of both, neither, or the opposite of their biological gender.
Although this might seem radical to most conservatives, it is an undisputed fact that
The Torah has always recognized at least 4 different genders or gender permutations- male, female, Androgynous, and Tumtum.
The Androgynous is generally understood to refer to someone who has both male and female sexual organs, whereas the Tumtum is one who has no visible external sexual organs, and whose actual biological gender is thus unknown.
All 4 of these genders are based on biological features, as opposed to the more common phenomena of people who are today known as “transgender” , who generally have biological features of one specific gender and other characteristics of the opposite gender.
As such, finding precedent in the halachik treatment of the Androgynous and Tumtum for a halachik approach to the transgender is far from simple.
Whereas it is certainly worth exploring whether transgender people might indeed fall into one of these two halachik categories despite this fact, at a minimum we should be able to learn something from them regarding the Torah’s approach to what is called in today’s language “gender diversity.”
The Mishna on daf 135 tells us that one may not perform a circumcision on an Androgynous on Shabbos, even on the eighth day, when a male infant may be circumcised despite the shabbos restrictions.
The Gemara learns this from the words את בשר ערלתו -his uncircumcised flesh- namely definitely uncircumcised flesh and not possibly uncircumcised flesh.
The understanding seems to be that seeing as it is not clear whether the Androgynous is considered to be a male despite having the physical symptoms of one, his male organs are not considered halachically to be indisputably male.
As such, even though he needs to be circumcised out of doubt, the obligation is not certain enough to permit the circumcision to be performed on shabbos .
This is quite a jump, given that the Androgynous is generally understood as being someone with both types of genitals- as such, surely we should consider him as one who definitely has “uncircumcised flesh.”
In fact, we could ask a stronger question here : if the Androgynous is not definitely a male and thus not definitely subject to circumcision, then obviously he cannot be circumcised on shabbos- how could one push aside shabbos when the mitzva is subject to doubt?
If so, why is a specific word in the passuk needed to exclude him?
If on the other hand, he definitely has the status of both a male and a female, then his “flesh” certainly has the status of uncircumcised male flesh and the מעוט ( exclusion) in the passuk should not affect him anyway.
Leaving these questions for another time (but refer to Tosfos who deals with them,) the starting point for any discussion about the status of an Androgynous is the fourth chapter of Bechoros, dedicated entirely to this subject.
In the first Mishna, we are told that an Androgynous is sometimes treated like a male, sometimes like a female, sometimes like both, and sometimes like neither.
Some examples given there are that
1. regarding the impurity of a zav or a niddah, he can become impure in either case, as a zav if he has the appropriate type of unhealthy emission, and as a niddah when seeing menstrual blood ( a double whammy.)
2. Regarding the laws of Yichud (seclusion,) he is not permitted to be alone with a male or female, other than his permitted spouse. (Another double whammy)
3. He is permitted to marry a female but not a male.
4. He is permitted to wear male clothes but not female clothes.
5. He is liable to keep all commandments that a man is liable to keep
6. He is treated equally to everyone else regarding any damages or injuries done to him and in all matters of civil law.
7. He does not inherit together with his brothers as if he is a woman but does not get supported from the estate either like girls do (another double whammy). In the absence of other siblings, he inherits everything like any other child would.
8. He may not be sold either as a Jewish slave or maidservant (an advantage perhaps.)
It seems clear from the pattern of these rules that they are based entirely on halachik reasoning, derived from verses or halachik logic, and not on any specific ethical, political, or emotional agendas as to how Chazal felt they should be treated .
Although Chazal were fully aware of the existence of non-binary genders, emotional factors like concern for their plight, though almost certainly present, played minimal or zero role in the way they related to members of these genders- they treated it as a legal matter and acted according to the normal rules of ספק (doubt .)
This was despite the fact that some of these rules undoubtedly placed further limitations and inconveniences on their lives than those placed by the Torah on others.
On the other hand, as far as relating to them on a human level outside these halachik factors, it is clear that they were treated like anyone else , all the laws against harming or offending people applied equally towards them, and no stigma whatsoever was applied to them.
Whether today’s many categories of genders recognized in many circles can fit into the halachically recognized genders or not, it seems clear from the halachik treatment of these already recognized minority genders that even if they could, one can expect little wholesale halachik flexibility for them- they would be treated as a normal part of society with the kindness that all in society deserve, but it would have little bearing on their halachik status.
This would be assessed purely on halachic grounds, albeit hopefully applying the golden rules of כח דהתירא עדיף (the power to permit is greater) and דרכיה דרכי נועם (her ways are the way of pleasantness) to make life as bearable as possible for them.
It goes without saying however, that if there are issues of either primary or secondary depression and other mental illnesses with the potential to be life threatening, which unfortunately seem to be very common in the transsexual community (whether this is innate or a result of how they are treated is not relevant for this purpose) , all the rules of pikuach nefesh would be applied.
There is much more to discuss on this, and many more relevant sugyos to learn, but for an interesting suggestion regarding the connection between the androgynous and transgender, see Minchas Osher where Rav Weiss deals with the fascinating question of someone whose father “transitioned” to being a female, and changed his name from “Ronny” to “Ronit”.
The question is how he should be called in his kesuba (marriage document)-” ben roni” or “ben ronit.”
It is complex, and I dont want to act as a spoiler, but will try paste a picture of the teshuva when I am home bli neder!