Ask the Rabba
Each month Rabba Melissa Scholten-Gutierrez answers questions from our readers. If you have a question you can email us at questions@unorthoboxed.com.
Dear Rabba,
I was very disappointed with your answer to the person who asked if there are halachic issues with hugging, etc. transwomen. You said that transwomen are women but did not give any halachic justification for this statement. In fact you even said, “And halacha is still catching up to that”. You were specifically asked about the *halacha* of the situation. Your answer violated halachic norms by (1) expressing your personal opinion, the way you wish things were – as evidenced by refusing to cite a single source in support of your opinion, and (2) refusing to do even the most minimal amount of halachic research on the subject. You failed the questioner and called your own credibility into question.
1) Of course it is not that simple.
2) The halacha is not as transphobic as you assume it to be.
The Tzitz Eliezer (a major Israeli medical posek) holds that *post surgery* a transwoman is indeed a woman. To the best of my knowledge, he is still a dat yachid, but his opinion is out there and post his death I have known both transwomen and transmen who have gotten rulings based on his reasoning.
I am an Orthodox lesbian. And the biggest challenge I face in the Orthodox community is people assuming that the halacha is as homophobic as they are. It is not. My second biggest problem is people assuming that I must be very lenient. This is an equally incorrect assumption. And it is equally harmful to the queer-observant community.
If you are going to present yourself as a poseket, then it is your responsibility to answer the questions ‘pi halacha’ which means citing sources. If you also want to give your personal opinions you are welcome to do that, but it should not be passed off as a pasak.
I am happy to supply you resources on the issues the queer community faces with regards to halacha, if you would like.
Havah Hope
Havah,
Thank you for taking the time to respond and to share your experience. I am not a member of the LGBT community and I have not lived the experiences so I always appreciate hearing them from another person. I have been listening to stories as an ally for many years and doing extensive halachic research as well. So while I didn’t cite sources in my last answer, it was not due to a lack of knowledge of them, if anything it was due to an overwhelming knowledge of them which was impossible to distill in the amount of time and space available. That is why I referred people to rabbis in their local spaces, because the treatment of trans women (who are women, and while it may be outside of halacha – it’s not an opinion) in halacha is complex and there are so many considerations that distilling needs to be done in conversation, not on paper.
When I say halacha is still catching up, what I mean is that the rabbis of the Talmud identified nine genders, and yet mainstream halacha doesn’t seem to be able to move past the binary. I don’t mean that halacha is transphobic. There is a bridge between tradition and where we are now – and we have to find our way across it, even when it feels very wobbly.
The Tzitz Eliezer is indeed a daat yachid, a single voice, who holds that post surgery trans individuals are the gender to which they have transitioned. Having one major posek on whom to rely is wonderful, however his scope is very limited. He notes that this is only for individuals who have completed a surgical transition. (Pastoral note: It’s never ok to ask someone socially if they have completed a surgical transition.) This can be a very limiting use of the Tzitz Eliezer as someone on whom to rely. Additionally, because he is a daat yachid, many, many rabbis are very dismissive of his psak altogether. A 60-page teshuva was recently written which really delves into this aspect of halacha and the transgender individual which may soon be published for widespread publication – I encourage you to read it at that time.
Additionally, given the higher rates of suicidal ideation in the trans community and the impact that having a welcoming community makes on that in the opposite direction, this becomes an issue of pikuach nefesh especially when dealing with something like social casual hugs. (This data is reported by Trevor Project’s National Survey on LGBTQ Youth Mental Health in 2020, if you or anyone else reading this response would like to see it in detail.)
Beyond that, this is one of the areas where giving psak on the internet is too complicated – as there are too many individual factors to be considered. Again, this is why I referred people who face this issue to have individual conversations with individuals who can hold our tradition accountable to the modern reality.
The core tenet of mitzvot is vechai bahem – that we should live by them. If we are so strong in our observance of mitzvot that people are dying because of them – we are doing it wrong according to the Torah.
I will stop now, because while this is a space for halachic answers, it is not a space for a teshuva.
Best to all,
Rabba Melissa
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