Dennis Prager has a point

What Dennis Prager says in his most recent column (“The hate is all in one direction”) is right – liberal Jews, rabbis and laypeople, responded in these pages to his piece “Torah and the transgendered” with a lot of passion and rhetoric, even beauty, without addressing his central claim. That claim, to boil it down, is that we Jews who are accepting of transgender people care more about compassion than halakhah, than the law of the Torah. The counter-argument that compassion is halakhah, is Torah, doesn’t cut it, because that’s an argument about the meaning of halakhah, about how halakhah works, not a halakhic argument.

I am also ready to believe Prager when he says that he wasn’t speaking with hatred towards transgender people. Certainly, he gave a nod toward understanding when he wrote in his first column, “One has to have a callous heart not to feel compassion toward anyone who suffers from gender dysphoria. It is surely awful to go through life thinking one’s body is of the wrong sex.” Of course, he also speaks in both articles with the sure sense of someone who believes in his own superiority as a champion of the Torah. That’s annoying, and perhaps less than admirable, but it’s not hateful.

Since other have already addressed the ways in which Prager’s words could be harmful, what I’d like to do here is respond to his argument on his own terms. I see two avenues of response. The first is that we could rebut his claim that the Torah only affirms the binary of gender, of male and female. The tricky part about this is, you can’t answer that claim so easily from the Torah itself, which doesn’t have a figure like Tiresias, the Greek prophet who was explicitly male and female. Rather, you need rabbinic midrash and halakhah. Kabbalah doesn’t hurt either. I will return to those in a moment.

The second response is the more cutting one: transgender identity as we are constructing it today doesn’t undo the binary of gender at all.

Rather, it affirms the binary of gender. It’s only because we’re a society that is based on the existence of just two genders, and no more, that someone whose inner identity is male but is in a female body, or is female in a male body, needs to transition, instead of simply being what they are. Most “cis-gender” people (people who feel like the gender that they biologically conform to) aren’t comfortable with someone they meet, or work with, until they can affix to them the label of male or female, so most transgender people are forced to conform themselves, both before and after their transition, to one of their genders. If we had more than two genders, then it would be easy to affirm male-born-female and female-born-male, alongside male-born-male and female-born-female, as real genders in and of themselves.

Of course, if you know halakhah already, you know what I’m getting at. Rabbinic law does exactly this – it affirms seven – seven! – genders. Not just two. That’s because long before we developed our menu of sexual and gender identities, there have always been intersex people, people whose gender was biologically incomplete, ambiguous or multiple. The rabbis had to make space for them in Torah, even though the Torah never tells us about anyone who is intersex. So the rabbis have bequeathed us these genders: androginos, tumtum, saris adam, saris chamah, ailonit, zachar, n’keivah. (Those words mean: someone born with both male and female genital parts, someone born with indistinct parts, a male who doesn’t develop secondary sexual characteristics because he was castrated, a male who doesn’t develop secondary sexual characteristics for biological reasons, a female who doesn’t develop secondary sexual characteristics, a male who does develop those characteristics, and a female who does develop those characteristics.)

Everyone who has thought about gender and Jewish law – so many wonderful scholars, and so many wonderful people who are transgender – knows this and writes about it. (See for example, transtorah.org  or Balancing on the Mechitza.) Why doesn’t Dennis Prager, the champion of Torah, know it?

The question then isn’t whether we can challenge the gender binary that appears to be part of Torah, since that has already been done, conclusively. There is no room to debate that, unless of course one wishes to leave rabbinic Judaism (which, of course, is Prager’s right if he so wishes). The question is, how do transgender identities today fit into these categories. Or, if they don’t fit into these categories, do we need to add more categories (which, of course, those of us interested in halakhah can do using halakhah)?

I’m proud to be raising my boy in Northampton MA, an epicenter for transgender rights. For him, transgender is part of what’s normal. But I had to work hard to get what it all meant when my best friend transitioned years ago. So I’m not surprised that our newfound openness about transgender identity is confusing to Prager.

Our whole society is going through a transition, and it wouldn’t be such a surprising change, even to Prager, if not for the fact that in the modern age, medicine decided it could “fix” people who were intersex by cutting and remodeling their genitals, usually to make them look male. (This was also how doctors developed sexual reassignment surgery for transgender people.) Of course, this medical suppression of intersex genitalia started before people knew much about x and y chromosomes, and many people who were genetically male or genetically female were assigned the opposite gender. This was almost always hidden from the children who were operated on, and often even hidden from their parents. It’s an outrage, something the law today would never allow. But it’s a big part of why we know that gender is not just in the body, but “in the head”. We know that because so many people who were assigned a gender opposite their chromosomes never felt right in their bodies, always feeling like they were the opposite gender.

None of this changes the fact that neurologists have not found a clear distinction between female and male brains. None of this changes the fact that most people go through life comfortably being the gender everyone else already thought they were. But what a gift we have, to live in a world where, finally, our society is catching up to rabbinic law!

Compassion does have something to add to halakhah, though, and it is this: we can give halakhic standing to people’s self-understanding of who they are, instead of just to how their sexual characteristics develop in the womb or at puberty. This has been agreed upon by many halakhic authorities, the most well-known being the Tzitz Eliezer. The question we find in the Orthodox responsa that agree with this opinion is not whether it’s possible to transition from male to female or female to male, but rather, how far one needs to go to have that transition affirmed by halakhah. What kind of “doctor’s order” is necessary before someone born female can turn into a halakhic male, or vice versa? Does one need to simply dress one way or the other? Does one need take hormones and gain breasts or a beard? Does one also need to have surgery – top surgery or bottom surgery? Or is bottom surgery even permitted?

But that’s all a matter of deciding when a person transitioning counts as fully male or fully female. For liberal Judaism, such distinctions matter little, but for Orthodox Judaism, where only men can count in a minyan or as witnesses on a document, it becomes important. Not important for a person’s identity, nor for whether there are two genders or more, but for where that person should sit in synagogue and (in some cases) whom they can marry. It’s complex, but it’s hardly the society shattering issue that Prager makes it out to be.
I personally think it’s a great blessing that as liberal Jews we don’t need to reassert the binary of gender in order to uphold a mechitzah (even though I sometimes like davening with a mechitzah). Instead, even in synagogue, we can let gender be fluid. But outside of synagogue, even in the books of the most traditional Judaisms, gender was already fluid.

So here are a few examples, beyond the halakhah, just to tweak our brains a bit. According to the traditional understanding of Genesis, the first human was both male and female, combined in one body. (Genesis Rabbah 8:1, Talmud Bavli B’rakhot 61a, Eruvin 18a) That’s why in Genesis 1 it says, “in the image of God He created him, male and female He created them”. (Gen. 1:27) According to the midrash, it’s only in Genesis 2 that the male and female halves were separated. And lest we miss the subtle message about God’s image, the Torah later tells us that “you must make no male OR female image of God” (Deut. 4:16) – in other words, if we are to imagine God, we should not imagine God as only male or only female, because God’s image is necessarily both male and female (and everything in between and beyond).

According to Kabbalah, no image of God is a “true and high image”, no presence of God resides in a place, unless it includes both male and female. (See, e.g., Zohar 1:55b.) Every creature is both male and female. (Tikunei Zohar 89b) According to Isaac Luria, a male soul can be born into a female body (Shaar Hagilgulim, ch.9), while Yosef Karo discusses a female soul incarnating as a male (Magid Meisharim). (See also Bavli B’rakhot 60a.)

Now, if Dennis Prager just wants to talk about Torah verses, he has a leg to stand on, specifically Deuteronomy 22:5. But if he wants two legs, if he wants to be a proponent of Jewish law and rabbinic Judaism, then it’s time for him to open his mind, just as it’s time for all of us. After all, almost no one over the age of 20 grew up in a world where people thought about more than two genders. So many transgender people also grew up in that atmosphere, feeling wrong, cursed, because they didn’t fit in with the binary of gender, instead of blessed because they knew more than this binary.

Now we all are on the road toward understanding how gender is more than two. And that road leads to a liberation, an arousal of compassion, for all of us, because each one of us is more than just male or female, each one of us is male and female, zachar un’keivah. We know that for many reasons, one being that the Torah says so. I trust that if Dennis Prager opens his mind to these very Jewish facts, his heart may also become more open, not just to having even more compassion for transgender people, but to finding ways within halakhah to transition halakhah, so that we may honor their choices.

Rabbi David Seidenberg is the creator of neohasid.org and the author of Kabbalah and Ecology: God’s Image in the More-Than-Human World (Cambridge 2015, kabbalahandecology.com). David was ordained by both the Jewish Theological Seminary and Rabbi Zalman Schachter-Shalomi, and he teaches on text, music, dance, and ecology, and on all aspects of Jewish thought and spirituality. David also founded the first Chasidic-egalitarian minyan, on NYC’s Upper West Side.