12

If a married Jewish man undergoes the hormonal and surgical procedure of sex change, and "he's become a woman".

  1. Would he still have the Halachic status of a man, at least relating to his marital status?

  2. Could he give his wife a Get if he wanted to?

  3. Would he be deemed by Halachah as mentally competent to give the Get?

Al Berko
  • 25,936
  • 2
  • 22
  • 57
Seth J
  • 41,606
  • 7
  • 85
  • 245
  • would he also be patur in mitzva zman gerama like a woman? dont think so. being a man is not just a physical thing. the souls are different. – ray Nov 06 '13 at 21:19
  • 1
    I seem to recall that the Tzitz Eliezer rules that sex changes work halachically to change one's gender (though they're assur lechatchila), while some other poskim rule that they do not change one's halachic gender. So it would seem like the problem is only according to the shita of the Tzitz Eliezer. –  Nov 06 '13 at 21:35
  • 2
    @ray Who said souls are perfectly correlated to chiyuv mitzvot? If someone concludes a man accidentally got a woman's soul, he's now patur? – Double AA Nov 06 '13 at 23:00
  • 2
    @DoubleAA Or HaChaim (B'reishis 22:20 and elsewhere) comments that Yitzchak was born with a female soul, and he did not receive a male soul (that would allow him to get married and have children) until the akeida. This idea may trace to the Zohar (see for example Pikudei 257a in light of 227b, מסטרא דשמאלא מסטרא דנוקבא). The רמ"ע מפאנו also describes Yitzchak as having a soul "from the side of femininity" (Gilgulei N'shamos 90:2), and the Seder HaDoros (Elef HaRishon) writes that Yitzchak was a gilgul of Chava. – Fred Nov 07 '13 at 02:08
  • would the halacha be different than if the man had castrated himself (not that I know the halacha in that case)? – Menachem Nov 11 '13 at 03:07
  • @Menachem A סריס אדם can give a Get (ShA EH 172:3). I thus don't see any reason to suspect that by doing that he would thereby become a women. – Double AA Nov 11 '13 at 03:57

3 Answers3

11

According to the majority of poskim, he is a man despite whatever surgery he had and he would certainly be allowed to give his wife a get. According to the minority view of the Tzitz Eliezer, he would not have to give his wife a get, because the marriage dissolved when he "became a woman."

He obviously does not meet the qualifications for a Shoteh. See R. Bleich, Contemporary Halakhic Problems, vol. 1, p. 100ff.

wfb
  • 14,504
  • 43
  • 76
  • 8
    This answer would be much improved if you could cite your sources. Can you give some examples of poskim who hold by the majority? Where does the Tzitz Eliezer say what he said? – Charles Koppelman Nov 06 '13 at 22:11
  • 1
    See R. Bleich, Contemporary Halakhic Problems, vol. 1, p. 100ff. – wfb Nov 06 '13 at 22:33
  • His genetic makeup will always remain male regardless of how convincing his gender change is. His genetic material will remain XY(male) and he will never have a genotype of XX (female). I would also favor an answer that he can give her a get. – alice fine Nov 20 '14 at 16:59
  • 2
    "He obviously does not meet the qualifications for a shoteh" ....not so obvious to me.... – MTL Nov 21 '14 at 06:03
  • 2
    See this comment and the subsequent one. Contrary to the oft-misrepresented portrayal of the Tzitz Eliezer's view, he holds (like every other halachic source) that surgery cannot change a man into a woman. He merely considers the possibility (without arriving at a conclusion) that an infertile androginus could become a woman through surgery. – Fred Nov 29 '15 at 23:31
  • @Fred my recollection is that the Tzitz Eliezer was willing to permit a woman to remarry without a get because her husband had undergone a sex change surgery and therefore was now considered to be a female – wfb Nov 30 '15 at 00:53
  • 1
    @wfb On the contrary, IIRC. In that context, he was talking about a case where the sex change was spontaneous, not surgical (10:25:26). – Fred Nov 30 '15 at 01:03
  • @Fred He does not seem to distinguish: מחקר גדול יש אמנם לחקור בהיכא שמתחולל שינוי מהותי - אורגני בגופו של אדם כגון בנתהפך מזכר לנקבה או להיפך, וכפי ששמעתי וגם נתפרסם על כך בכתבי-עת שונים, מבצעים כהיום גם נתוחים כאלה במקרים מיוחדים. On the Tzitz Eliezer's sources in 18-19th century science, see https://moderntoraleadership.wordpress.com/2015/11/20/science-halakhah-and-the-halakhists-dilemma/ – wfb Nov 30 '15 at 16:04
  • @wfb That quote is from 10:25:26. The Tzitz Eliezer brings up the question of the halachic implications of either a surgical or spontaneous change (in your cited quote), but then he does not end up drawing conclusions about the case of surgical sex change. He also never extrapolates from his discussion of a spontaneous "organic" sex change to the case of a surgical sex change. His later responsum (11:78) suggests that the halachic effectiveness of a sex change operation could extend as far as to the case of an infertile androginus, and even then he only entertains that as a possibility. – Fred Nov 30 '15 at 19:43
  • I looked up the source, I don't see him quoting a "vast majority of poskim" that disagree with the tzitz Eliezer. https://www.sefaria.org/Contemporary_Halakhic_Problems,_Vol_I,_Part_I,_CHAPTER_V_Medical_Questions?lang=en – user262055 Mar 12 '18 at 02:38
  • @user262055 see here https://moderntoraleadership.wordpress.com/2015/11/20/science-halakhah-and-the-halakhists-dilemma/ where he explains that the Tzitz Eliezer was basing himself on 19th century speculation about the ability of men to spontaneously transform into females, which is not relevant to the question of transgender at all. In fact, R. Bleich has more recently explained that the Tzitz Eliezer himself never intended to discuss a case of transgender surgery at all. Listen here http://podcast.headlinesbook.com/e/111916-dealing-with-fertility-and-related-issues/ – wfb Mar 12 '18 at 03:04
5

The Tzitz Eliezer is at the end of Vol 10 25:26:6. The teshuvah discusses transplants, and he raises the question posed here as a hypothetical. A second teshuvah, in vol 11 #78, is about someone with a hormonal issue impacting their sexual development during gestation who is born looking female, but has one testicle. In both cases he says that gender is decided by external organs, not internal ones.

I frankly do not know of anyone else who wrote on the topic. Also, notably, REW wrote a teshuvah, i.e. intending to be follows in practice -- lehalakhah ulema'aseh, as opposed to R Bleich's more theoretical journal article.

Speaking theoretically, I could see logic of a third position.... That with regard to halachic gender differences based on role, the person's gender is that of their birth. So that the person in question would still be obligated to wear tefillin, daven three times a day, etc... But when it comes to gender issues related to sexuality, their gender is their new assigned gender. After all, if the person is now female, is yichud with men or with women more problematic? What to do about minyan, which is interpersonal but not sexual, is beyond the scope of my speculation.

Micha Berger
  • 9,648
  • 33
  • 41
  • 3
    What does gender have to with davening three times a day? – Double AA Nov 20 '14 at 16:59
  • I keep thinking your profile picture is R Bleich! – Double AA Nov 20 '14 at 17:46
  • @DoubleAA, he must not hold like the Rav. – Seth J Nov 20 '14 at 19:24
  • @SethJ Or like some other solitary opinions... http://judaism.stackexchange.com/questions/13326/if-women-are-not-obliged-to-daven-maariv-should-they-daven-if-they-wish-to#comment101317_13326 – Double AA Nov 20 '14 at 21:28
  • @DoubleAA I heard somewhere that women are not chayav to daven Ma'ariv (or Arvit, or Arbit, to cover all my bases). –  May 05 '16 at 01:00
  • 1
    @ephraimhelfgot If you heard such a thing it must have been made up in the last ~200 years. No Rishon mentions such a thing, yet they all had women around. They all just say that nowadays Halakha treats Maariv as a Chiyuv. – Double AA May 05 '16 at 01:10
  • @DoubleAA I heard it all the time from school Rebbeim-- If you know Yavneh Academy of Paramus, I could give you names. –  May 05 '16 at 01:25
  • @ephraimhelfgot Oh, I don't doubt that you heard such things. I too have heard many people say that. I've even seen a respectable Rabbi/Posek say in writing that all agree to it (which is demonstrably false). It's, frankly, astounding. – Double AA May 05 '16 at 01:58
4

I heard that the London Beis Din sometime in the 20th century had such a case and asked Rabbi Ruderman if this person could give a get. Rabbi Ruderman didn't discuss if the gender change would have any ramifications on their halachic gender. He responded that even if they are now considered a female, it doesn't say anywhere a woman can't give their wife a get. The Torah says give your wife a get, and they did.

Whether they are a shotah or not would depend on the case. The case you describe doesn't sound like they're so crazy to me...

robev
  • 19,863
  • 3
  • 45
  • 96
  • Hey, how did you hear about this case? It'd be interesting to know if it really happened. – chacham Nisan Jan 25 '19 at 05:52
  • @chachamNisan Rav Ruderman told Rav Shraga Neuberger (or maybe he was around when it happened) who shared it with us. I believe it really happened – robev Jan 25 '19 at 15:04