What does the Tzitz Eliezer say about the halakhic implications of surgery intended to change the sex of the patient?

by Rabbi Aryeh Klapper

Rabbi Eliezer Waldenberg discusses surgery and halakhic sex identity in three responsa: Tzitz Eliezer 10:25:26:(6), 11:78, and 22:2.

An in-depth analysis of these responsa by Rabbi Tzvi Sinensky recently appeared in Lehrhaus. Rabbi Sinensky also summarizes an array of prior analyses. I have deep respect and appreciation for Rabbi Sinensky, and little if anything original to contribute. My intent here is simply to present what I see as the best reading, and why. 

I understand the crux of the issue to be: what are the realities that Rabbi Waldenberg addresses in these responsa?

Tzitz Eliezer 22:2, dated 22 Shvat 5757, or January 30, 1997 but referring to an indeterminately earlier conversation, addresses a question that Rabbi Waldenberg reports was asked “from outside the Land of Israel” to Sephardic Chief Rabbi Mordekhai Eliyahu. The question is formulated as

Regarding a man who was transformed absolutely into a woman, what is his legal status etc.

בגבר שנהפך לגמרי לאשה, מה דינו וכו

No details are provided about the transformation other than describing it as “absolute”.  

Rabbi Waldenberg cites as precedent the position of Rav Chaim Pelagi in Yosef Et Echav, Gimmel:2, regarding

One who changed from female to male in each and every way

דנשתנית מנקבה לזכר בכל מכל כל

Here too the description is purely qualitative: “in each and every way”.

Rabbi Pelagi told his audience not to wonder at the case, because “everything is possible” (שהכל באפשר), and also because the book Yad Ne’eman describes several such cases. He notes later that Yad Ne’eman explains how such transformations can occur naturally and should not be viewed as miraculous.

Yad Ne’eman rules that such a transformation ends a marriage without need for a get. Rabbi Pelagi reports that this conclusion was disputed by Rabbi Eliya Abulafia in his Devar Eliyahu, who further wrote that “silence is preferable regarding an upside-down world and things that are not found” (יפה שתיקה בעולם הפוך ובדבר שאינו מצוי). It is not clear to me whether Rabbi Abulafia means that such cases are rare enough to be ignored, or rather denies their existence.

Rabbi Waldenberg then notes that Korban Netanel to ROSH Yebamot 8:6 and Maharit Algazi to Hilkhot Bekhorot 6:58 each cite Maasei Tovyah (Olam Katan Chapter 5) citing doctors as reporting cases in which androgynes gave birth to children and later sired other children.

Rabbi Waldenberg concludes, as best I understand him, that in the case brought to Rabbi Eliyahu, there is no way to know whether the person has changed sex or rather was an androgynous (אנדרוגינוס) all along. (The latter possibility aligns with the position cited by Magen Avrohom 589:2 in the name of RIF that an androgynous is someone whose body flips between the sexes rather than consistently having both sets of genitalia. See Rabbi Waldenberg’s brief discussion of this position in 11:78.)      

Regardless, this responsum does not address surgical or other artificial transformations. The only criterion it provides for whether a transformation has occurred is the ability to bear or sire a child. This does not mean that fertility is a necessary condition for a change of sex. But no evidence can be brought from this responsum for any case where the patient was and remains infertile, or for any physical transformation that can reasonably be seen as less-than-absolute.

Tzitz Eliezer 10:25:26:(6), undated but according to Rabbi Sinensky published in 1967, begins its discussion of sex transformation as follows: 

There is need for a full-scale investigation of the halakhah

regarding where there occurs qualitative-organic change in a human body

as for example if it transforms from male to female, or vice versa.

I have heard, and this has also been publicized in various periodicals,

that nowadays surgeries such as these are even performed in special cases (that are obviously rare)

Such a qualitative change truly generates many questions

with regard to establishing the identity and personality of such a human being.

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 (וכמובן נדירים).

בשינוי מהותי כזה –

נוצרים באמת הרבה בעיות

הנוגעות לקביעת זהותו ויחודו האישי של אנוש כזה.

Rabbi Waldenberg then cites Yad Ne’eman in more detail than in 22:2, clarifying that Yad Neeman believed that sex-transformations were possible because male and female genitalia are merely inversions of each other. He then cites Yosef et Echav in full, and briefly evaluates some of the technical arguments brought therein.

Rabbi Waldenberg’s reference to “surgeries such as these” assumes the possibility of artificial sex transformation. However, he provides no direct criteria for evaluating whether a specific surgery has effected such a transformation. The body of the patient “transforms from male to female, or vice versa” in a manner that is “organic and qualitative”. In context, he is contrasting “organic and qualitative” transformation with the effects of a heart transplant. This standard is so vague and incomplete as to be almost useless. Even so, it seems at the least to exclude cosmetic surgery.

Tzitz Eliezer 11:78, dated 6 Cheshvan 5731, or 1970, directly addresses a specific case, with medical details provided by the physician Y. A. Schussheim. An infant was born with female-appearing genitalia, including the appearance of a vagina, labia, and clitoris. However, at age six months, a lump within a fold of the apparent labia was biopsied and determined to be a testis. A surgical investigation revealed no internal reproductive organs such as a uterus or ovaries. Genetic testing revealed that the child was chromosomally XY, or male.

Dr. Schussheim formulated two questions. The first was whether it is permitted to transform a genetic male into a female. The second was whether removing the testis was permitted in this case. Dr. Schussheim asserts that the child will be infertile regardless. However, he regards removing the testis as necessary

to prevent the operation of male hormones

which would interfere with the development of the female

כדי למנוע פעילות הורמונלית זכרית

שתפריע להתפתחותה של הנקבה

Rabbi Waldenberg rules that the child is halakhically female as-is, before any surgery. His ground for this ruling is that the child has no external signs of male genitalia, and “the external organs that are visible to the eye are what establishes the halakhic status” (האברים החיצוניים הנראים לעין הוא הקובע בהלכה). In a parenthesis, he reports that a doctor told him that males and females have the same hormones, and the difference between them is one of ratio. He regards this as clear evidence that only external features can determine halakhic sex, and sex-linked chromosomes are halakhically irrelevant.

He then makes the following two statements:

That being so, it appears obvious in the instant case

that it is permitted to perform surgery on this child

and thereby transform him into a female even in his internal development.

בהיות כן נראה לפשוט בנידון השאלה

שמותר איפוא לנתח ילוד זה

ולהפכו עי”כ לנקבה גם בפנימיות התפתחותו.

What still remains in need of some little investigation

is that a male testis is found within one of the labia,

whether it is permitted to excise this single testis so as to thereby prevent male hormones from operating that will interfere with the development of the female,

without violating the prohibition against castration.

מה שיש לעיין עדנה קצת

הוא מה שנמצא בתוך אחת השפות אשך-זכרי,

ואם מותר לכרות האשך היחיד הזה כדי למנוע עי”כ פעילות הורמונלית זכרית

שתפריע להתפתחותה של הנקבה,

ולא יעברו בזה על איסור סירוס.

Recall that Dr. Schussheim formulated two questions: whether it is permitted to transform a genetic male into a female, and whether removing the testis is permitted in this case. Rabbi Waldenberg’s two statements correspond to those questions.

The second statement is straightforward. Since the child is halakhically female, and would regardless be unable to sire children, removing the testis is not halakhically forbidden as castration.

The first statement, however, is puzzling. What does Rabbi Waldenberg mean by “transform him into a female even in his internal development”? Dr. Schussheim’s question made no reference to internal development.

It seems to me that Rabbi Waldenberg thought Dr. Schussheim was proposing surgery in addition to the removal of the testis that would implant internal female organs that would develop with the child. Such organs would enable the child to produce estrogen and progesterone. Removing the testis would prevent male hormones from interfering with the development of those organs.

My understanding is that no surgery currently offered, or available then, would give the child any internal female organs. The child described by Dr. Schussheim had no “intersex” characteristics other than the appearance of the external genitalia. The surgeon may have intended to surgically enhance the infant’s capacity to function socially as a female, e.g. by enabling seated urination, or via cosmetic surgery on other body parts. But none of this would constitute “transforming him into a female even in his internal development.”  

Tzitz Eliezer 11:78 thus addresses an imagined case in which surgical intervention provides a patient with internal sex-linked organs. Recognizing this sheds light on 10:25:26(6). Rabbi Waldenberg there addressed surgery which effected a “qualitative-organic” shift on a human body by transforming its sex, without specifying what that meant physically. I suggest that it meant that the surgery provides the body with functioning sex-linked organs.

Such surgery was initially within the ambit of surgeons treating patients with gender dysphoria or similar conditions. For example, according to Wikipedia,

Between 1930 and 1931, Lili Elbe underwent four sex reassignment surgeries, including orchiectomy, an ovarian transplant, and penectomy. In June 1931, she underwent her fourth surgery, including an experimental uterine transplant and vaginoplasty, which she hoped would allow her to give birth. However, her body rejected the transplanted uterus, and she died of post-operative complications in September, at age 48.

Uterine transplants for transwomen are again being proposed. As Rabbi Waldenberg’s only gesture toward empirical reality in 10:25:26(6), is a citation to unnamed periodicals, we cannot know what sort of surgical interventions he thought were being performed in 1967, or were necessary to effect sex transformation.

In sum:

22:2 discusses only “absolute” transformations and does not reference surgery.

11:78 discusses an imagined case of surgical transformation.

10:25:26(6) discusses surgical transformation without providing any details as to what those transformations entailed.

None of these responsa have any necessary application to contemporary gender-affirming/confirming surgery, which primarily involves the construction of external genitalia that do not connect biologically to the internal organs of their usual sex.

However:

By the same token, since 10:25:26(6) provides no details as to what is required, there is no internal evidence demonstrating that any form of such surgery is insufficient to affect halakhic sex-assignment. It is a question of the burden of proof.

And 11:78 includes a statement that halakhic sex-assignment is based entirely on the appearance of external genitalia, even if that appearance is biologically misleading. Nothing in 11:78 indicates whether or not that statement applies to genitalia that were artificially created, for example via surgery. It is again a question of the burden of proof.

There is no straight line between the best reading of any specific text and halakhic decision making. Moreover, Rabbi Waldenberg’s responsa never consider the question of whether psychological identity has halakhic effects. His halakhic reasoning also takes no account of the effects of hormonal treatments on secondary sex characteristics.

My intent here is not to issue a halakhic ruling or to set halakhic standards. I hope instead to have shown that Tzitz Eliezer’s works are not a sufficient or proper ground for the necessary halakhic conversation.

Sodom and Gemara

by Rabbi Aryeh Klapper

A Washington Post article last week described how people stranded in their cars by a snowstorm in Buffalo were turned away by numerous private house owners. They avoided death by hypothermia only because one broke into a school building and let the rest in. Maharat Ruth Balinsky asked on her Facebook page: Has Buffalo descended to the level of Sodom?

It seems unlikely that the people of Buffalo are any worse than people in other U.S. urban areas. So the question is really to all of us: Do we live in Sodom?

The question has two parts. First, was it a Sodomian act to turn those people away?  Second, would we have let them into our own houses?

The second part hit me hard. Many years ago, Deborah and I invited anyone who came to Harvard Hillel home for Shabbat meals. But a series of edgy experiences made us cautious. There was the woman Torah scholar who was homeless, but it turned out that she had left her home because it was infested by demons. There was the man who announced himself as the Messiah, and simply would not leave after Friday night dinner. That was at a friend’s house, and it led to a communal policy of requiring guests to have references. So I sent Deborah the article and asked: Had we become Sodomians?

I read my friend Rabbi Daniel Cohen’s What Will They Say About You When You Are Gone? this week.  Rabbi Cohen asks people for the moment when they felt best about themselves. One woman responded with a story about a time she offered to buy pizza for a homeless man, and suddenly realized that this was an actual person when he asked for an extra-cheese.

In 1992-3, I gave shiur weekly at Yale and Penn on different nights, commuting both ways by train from New York, arriving back after midnight. Teaching Torah was a bipolar experience for me then – I’d get back either too exhilarated or too depressed to go home and sleep. So I generally walked up Broadway to 125^th Street before catching a taxi to Washington Heights. Along the way I’d meet Cole, who only let me buy him a specific brand of deodorant; and John, who wouldn’t take food instead of money because it validated my distrust; and several other street people I knew by name and story. And yes, that made me feel good about myself. And no, I don’t currently know any street people by name, and haven’t for many years. Have I become a Sodomian? Or was I wrong then to expose my family to potentially dangerous people when there were reasonable alternatives, and of course even now I would take in stranded motorists who might otherwise die?

Chazal portray Sodom as an absolutely lawful culture. The mob around Lot’s house is enforcing the law about treatment of strangers, not breaking the law. The mass of Sodomians would rob newcomers blind, but no individual would take enough to violate the prohibition against theft. In essence, Chazal imagine Sodom as a culture just like their own, except evil. Or maybe unjust – just like their own. Maybe nonetheless not just law-abiding but obsessed with the details of law.

I love that Chazal could fashion such a mirror and look into it unflinchingly. It worries me when I hear these midrashim quoted with no sense of reflection. Teachers should be asking their students, rabbis should be courageously asking their congregants: what halakhot do you see us observing punctiliously but pointlessly and at the expense of others?

Some comments on Maharat Balinsky’s post suggested that the problem was less with the individual householders than with the government’s failure to have proper infrastructure or respond with enough resources. This is a very reasonable position. Nor is it one taken only by private citizens – a city in Connecticut I passed through last week has signs as you enter from the highway urging drivers to donate to specified charities rather than giving to the panhandlers who frequent the spot. Very likely that will ensure that the money is used more efficiently and with a clearer focus on long-term outcomes.

As I said, it is a reasonable position to blame the government – that is to say, our whole society – MORE than individuals. But that doesn’t excuse the individuals. More importantly, the comment suggests that AN effect of having government take primary responsibility for charity and chesed is to diminish the responsibility that individuals feel for specific cases. That effect must be exacerbated when government advises individuals to give only to organizations.

Talmud Bava Batra 9a challenges this approach, which might be termed “effective altruism”.

A poor man going door-to-door came before Rav Pappa, who did not respond to him. 

Rav Sama son of Rav Yayva said to Rav Pappa: If sir does not respond to him, no one else will respond to him – should he die?!

Rav Pappa replied: But a beraita says: A poor man going door-to-door – one must not respond to him!?

Rav Sama replied: One must not respond to him with a large gift, but one responds to him with a small gift.  

Rashi assumes that the discussion is about whether the public charity fund, of which Rav Pappa was treasurer, ought to respond to beggars who ALSO go door-to-door. The concern may be that such beggars will be receiving a disproportionate share of available charitable funds, or an effort to limit the annoying phenomenon of door-to-door solicitors. The conclusion is that the public fund should provide only token funds to such solicitors.

Rashi’s reading is very difficult, as nothing in the story suggests that Rav Pappa gave anything from his private purse to the poor man.

Rambam (Laws of Gifts to the Poor 7:7) convincingly reads the entire story as about private charity. Rav Pappa thought it was an inefficient use of his charitable funds to give to solicitors. Rav Sama replies that one must give nonetheless. Rambam then adds a powerful coda to Rav Sama:

It is forbidden to return a poor person who asked emptyhanded, even if you give him (instead) only one dried fig, in accordance with Psalms 74:21: “He must not turn back a crushed person humiliated”.

The simple meaning of Rambam is that humans do not live by bread alone; they also require dignity. Possibly he also worries about the cost to your own virtue when you risk humiliating someone to avoid being morally inefficient with your money.

But, you will reasonably protest, the goal of our policy is to prevent people from having to beg. If we succeed, they’ll never need even to risk humiliating refusals!

I often begin shiurim on the laws of charity by asking: Does a genuinely socialist government fulfill the mitzvah of tzedakah, or eliminate it? This can be framed as a choice between utilitarianism (fulfills) and virtue ethics (eliminates). But a better framing might be that government sustains its commitment to the goals of tzedakah only so long as the people who sustain the government sustain that commitment. Maybe what really happens is that people lose that commitment if their private experience is always to refer the poor to government – one cannot build toward utilitarian ends without building virtue. Maybe that’s why another element in midrashic portraits of Sodom is a ban on private charity.

Of course, at least some members of Chazal also depict Sodom as hypercommitted to the principle of private property (Mishnah Avot 5:10):

“Mine is mine and yours is yours” – this is a characteristic of mediocrity; but some say: a characteristic of Sodom.

The models above collectively demonstrate that a Sodomian society is not built by encouraging vice, but rather by distorting or overemphasizing a virtue. This makes it all the more important that we commit to looking at the mirrors people hold up in front of us, even though we will not always see the horrors they see. And even though often we will be right and they will be wrong. So it would be dishonest not to mention that our tradition also depicts Sodom as a society which has lost its way sexually in ways that at least superficially mirror aspects of our own.

Those holding textual mirrors up to the contemporary West can argue that – to varying extents – we have overemphasized or distorted genuine values such as charity, inclusion, compassion, authenticity, and love (yes, Jews have historically argued that love, compassion, and charity are subject to overemphasis). We need to look in their mirrors if we want them to look in ours. We also need to look – at least occasionally – in mirrors that scare us in order to make certain that what we ordinarily regard as mirrors are not actually pictures of Dorian Gray. 

Maybe the story in the Washington Post missed key details. Maybe in the moment we would all have invited those stranded motorists in. I hope so.