Guest Post: Approaching Trans Halakha: A Practical Guide With Theory
by Lexi Kohanski!
From R. Avigayil: It is a tremendous kavod to publish my friend, chavruta, teacher, and colleague Lexi’s TREMENDOUS work theorizing trans halakha. This essay is a stunning collage of Torah scholarship, analytical thinking, personal experience, and love of Hashem. If you are glad that this work exists in the world, please go to Lexi’s Patreon — because of capitalism, the only way that people are able to do this work is if we are able to pay the rent.
(Also, it is both such a zchut and also a sadness to publish this piece here — we deserve so many lefty frum Torah publications, and I wish there were journals and magazines that would be a better home for this brillant work!)
About Lexi: Lexi Kohanski is a trans Jewish writer and educator. Her work has appeared in Gashmius Magazine, Approaching, and the Trans Halakha Project, and she regularly publishes through the T4Torah Patreon. Lexi’s cornerstone halakhic essay, Be Whole: A Halakhic Approach to Gender and Transition, lays out a pathbreaking halakhic framework for relating to Jewish gender transition as a sacred undertaking. She has given talks on the trans Jewish experience at synagogues on both coasts and in Scotland. Lexi gives regular sermons on spiritual resilience and survival through her podcast, Torah for Trans Lives. She is also designing a first-of-its-kind tabletop roleplaying game to teach Biblical Hebrew. Before finding her calling, Lexi was an actor, ESL teacher, and farmer. She has learned at the Conservative Yeshiva, Pardes, SVARA, Hadar, Maharat, and Yashrut. Lexi’s home as a teacher is at the Torah Studio, where she serves as the organization’s Director of Online Learning.
Dead flies make the perfumer’s oil stink. In this moment when halakha for and about transgender lives is beginning to flourish, we are pouring oil into bottles ignorant of the fact that they are already full of dead flies. The acknowledgment that trans Jews exist and that the discourse of Torah must engage with us has not been complete. We are still told that the halakha only recognizes two binary sexes, that our basic dignities hang on the thread of pikuach nefesh, that we can sit in the men’s section but you won’t shake our hand, that gender doesn’t matter in egalitarian practice. This perfume stinks. Acknowledgment that trans Jews exist has to mean internalizing that trans Jews have always existed, that we speak for ourselves, and that our transness is central to the ways we live lives of Torah and mitzvos. Integrating these realities into our halakhic work is reshaping our relationship with the mitzvos in ways we cannot yet understand but are beginning to witness. This essay is a guide to cleaning out the bottle of transgender halakhic discourse, so that not one more drop of the oil of Torah should be spoiled by the generations of transphobia we have all inherited and whose scents still stain us.
בעזרת הא-ל ששמע לאהרן כהן גדול כשהוא עמד בין המתים ובין החיים ותעצר המגפה:
With the help of the G-d who listened to the High Priest Aharon when he stood between the dying and the living, and the plague ceased.
There are three realities we have yet to integrate fully into our halakhic thinking about transness, and ignoring them leads to three types of harm. These realities are statements of fact about the phenomenon of human gender diversity. Even though they are not halakhic constructs, halakha is about people’s lives—understanding truths fundamental to trans lives is a prerequisite to knowing even which question to ask, let alone to issuing valid psak. It is a matter of correctly establishing the metzius. A genuine acknowledgment of trans existence entails internalizing these truths, and failure to do so leads to these harms:
Trans Jews understand ourselves better than anyone else, so no conversation or ruling about us carries any weight without our voices. Ignoring this reality leads to discourse about us without us.
Trans Jewish lives are naturally euphoric (or, if you prefer, not inherently more dysphoric than cis lives), so halakha should center what is positive in trans experience. Ignoring this reality leads to dysphoric leniencies.
Trans Jews have always existed, so we have never been absent from the tradition. Ignoring this reality leads to dysphoric limmud.
We have all been breathing the perfume of death, all our lives. Cis Jews are not the only ones ignoring these truths or perpetuating these harms. I’ve heard them from other trans Jews just as much as from cisgender poskim, and it is so much worse when trans Jews say these things to each other—when we hate ourselves, we cannot help but hate others. We are all liable to each other in the work of understanding transness. In service of that goal, I will explore these harms, the truths which are their remedies, and then present three visions of what it can look like to do legitimate halakha about transness.
Harm 1: Nothing About Us Without Us. Trans Jews speak for ourselves, so no conversation or ruling about us carries any weight without our voices. Ignoring this reality leads to discourse about us without us. As articulated by James Charlton, the principle of “nothing about us without us” represents a “demand for control” in the face of systemically imposed dependency. He writes for his own community, “For the first time in recorded human history politically active people with disabilities are beginning to proclaim that they know what is best for themselves and their community” (Nothing About Us Without Us, 4). The position of trans Jews in halakhic discourse is importantly different in that we are just as dependent on poskim as everyone else. Setting questions of halakhic empowerment aside, though, “nothing about us without us” matters for halakhic discourse about trans people because without us, it is impossible to understand us.
Nearly everything in the halakhic corpus written about trans people before the Trans Halakha Project has violated the principle of “nothing about us without us.” One work is notable, though, for the author’s positionality as the parent of a non-binary child—despite this deep, personal relationship, Rabba Aliza Baronofsky still wrote an article in 2023 about non-binary Jews without listening to what they have already said on the subject. Baronofsky has written elsewhere about the importance of advocating for queer Orthodox Jews, but she herself is not, to my knowledge, trans or non-binary, nor does she cite any non-binary authors in her halakhic essay about them. An ally’s first responsibility is to uplift the voices of those for whom you are advocating. A mission statement like “we must find halakhic solutions for them” (66-67, emphasis added) implies that “they” are helpless to speak for themselves, and it deprives them of their agency to do so. Instead, poskim wishing to be our allies must listen to what trans Jews are already saying on the topic and follow their lead.
Non-binary voices are critical in conversations about non-binary Jews, because the core facts of the case are impossible to understand from the outside. Baronofsky’s central question is: what relevance could the category of androginos have to non-binary Jews? The realities of non-binary Jewish experience are strikingly absent, so the question remains unaddressed in practice—at least in Baronofsky’s essay. (1)Trans and non-binary authors have been exploring the implications of the analogy between non-binaryness and the androginos ever since Noach Dzmura’s foundational essay Intersexed Bodies in Mishnah: A Translation and Activist’s Reading of Mishnah Androgynos in the 2010 book Balancing on the Mechitza. Firsthand accounts like Dzmura’s need to be the starting point of any halakhic inquiry. Without being grounded in the realities of lived experience, a posek will ask the wrong questions or issue unlivable psak. We already know this when the topic is not about gender—the only difference is that every trans person is trans in their own way. There is no consensus among non-binary Jews whether androginos is a useful halakhic model for non-binariness.
Baronofsky’s work might contribute to their conversation by exploring areas of halakha, like yichud and zimmun, that as far as I know have not yet been addressed elsewhere. While this deeper holding in hilkhos androginos has the potential to greatly benefit trans Jewish discourse, it cannot serve this purpose without the proper grounding. Baronofsky fails along the same line as Rabbi Gordon Tucker’s responsum which “attempts to ‘normalize’ gay and lesbian relationships on the topic of ‘homosexuality:’” it makes room for “them” in “our” society, without realizing the fundamental changes demanded by the reality of queerness (‘Nothing About Us Without Us’ by Laynie Soloman and Russell Pearce, 1804 & 2022). And as Soloman and Pearce imply, when “queerness [does not] leverage the critique,” poskim are at risk of grounding their arguments in “the general persistence of [queer] suffering” (2022).
Harm 2: Dysphoric Leniencies. Trans Jewish lives are naturally euphoric (or, if you prefer, not inherently more dysphoric than cis lives), so halakha should center what is positive in trans experience. Ignoring this reality leads to dysphoric leniencies.
People have been assuming that trans lives are tragic from the very beginning. If our identity condemns us to fundamental misery, allies with good intentions think that the best that can be done is damage control. When poskim do not even attempt empathy, the underlying assumption is usually that transition is necessarily transgressive. Most halakhic work about trans people by cis allies subscribes to one of these condescensions, which are two sides of the same coin: trans people are presumed to live undesirable lives. The archetypal trans person is either miserable or monstrous (2). It takes conscious self-reflection and investment in personal relationships with (other) trans people to uproot that ingrained image.
Sefer Dor Tahafuchos by Rabbi Idan ben Efrayim is probably the best known halakhic work about trans Jews. Ben Efrayim opens the book with a page-long list of miserable/monstrous condescensions, including:
אולם, כאשר אותם אנשים נצבים לפנינו וחשקה נפשם להתקרב ליהדות ולשמירת המצוות, הן אמת נכון הדבר כי נעשתה התועבה הזאת בישראל, וגם דבר זה אינו שכיח, מכל מקום חובה קדושה עלינו לברר הדק היטב איזו דרך תשכון אור להנחותם בדבר ה' – זו הלכה...ואיתא בקידושין ובערכין, תני דבי רבי ישמעאל: הואיל והלך זה ונעשה [מוכר] לעבודת כוכבים, אימא לידחי אבן אחר הנופל?!
However, when those people are standing before us and their souls yearn to come close to Judaism and mitzvah observance—yes, it’s a fait accompli that this abomination has been done in Israel, and such things are simply not done—nevertheless it is our holy duty to clarify extremely carefully on which path lies the light to guide them in the word of Hashem, i.e. halakha… And we have in Kiddushin and Erkhin, “The house of Rabbi Yishmael taught: Since this one went and sold themself to idol worship, should you throw a stone after the fallen?!” (Sefer Dor Tahafuchos 8)
Before a concrete question is even asked, we are already abominations and idol worshippers. Ben Efrayim’s revulsion is not merely on the page—it’s also an embodied reaction. When his student comes to him wanting to know how he should relate to his trans male brother, ben Efrayim reports that “I stood in place stunned by what my ears were hearing, and shock overtook me, and I had no idea what to say about it. And suddenly complex questions and interrogations came into my head that required halakhic resolutions… And even though the soul recoils and abhors to discuss this abomination, I took it upon myself to look into the matter” (7). The writing of the most famous halakhic book on transness began with a moment of disgust and embarrassment.
I find no evidence that ben Efrayim ever reconsidered his gut reaction to trans people. The first page of the main body of Sefer Dor Tahafuchos lists the five sins we commit when we get bottom surgery, including crossdressing and deceiving the unsuspecting (3). He consulted a litany of medical and halakhic experts, but seems never to have actually met a trans person. The title of the book itself is an insulting reference to the verse “I will hide My face from them; I will see what becomes of them, for they are an upside-down generation, children without faith” (Devarim 32:20). It is no surprise that Sefer Dor Tahafuchos is famous for its leniencies “allowing” trans people to participate in frum social life. It’s impossible to arrive at any other type of conclusion when you are disgusted by the people you are trying to help (4).
When the motivating force of a tshuvah is “They have a problem, so how can we allow solutions,” the answers are inevitably going to be dysphoric. To quote the originator of the term “dysphoric halakha,” Laynie Soloman:
Too often our conversations about trans realities and traditional norms are about solving perceived problems or figuring out how to make adjustments or concessions to a normative system. How do our leaders and teachers respond when our bodies and our realities do not “fit”? Why do we take the cis-normative, binary system of applied Jewish law and maneuver, reconfigure and contort trans experiences to find ways in which we fit within the system? Pages of ink have been spilled in recent years by cisgender rabbinic authorities who ask and answer questions about the ways in which we do not fit. This is none other than dysphoric halakha, a halakha that defines trans-ness by the ways in which we aren’t right, we don’t work, and we are out of place. Dysphoric halakha seeks to get us to fit.
… Instead of asking “What are the points of dissonance between our tradition as it has been practiced and trans experiences?” we must ask, “What are the profound opportunities for revelation that trans people can offer our learning communities and legal tradition?”
Attempts to make us fit into an unchanged system inherently force us to deny who we are. We can do better.
Another aspect of dysphoric halakha arises from the push to be lenient based on pikuach nefesh, the halakhic imperative to perform actions that would otherwise be prohibited or transgressive in order to preserve life. This type of leniency is based on the idea that trans people are sick with a semi-incurable disease called gender dysphoria. The CJLS’s 2017 responsum by Rabbi Leonard Sharzer “Transgender Jews and Halakhah,” citing their 2003 ruling permitting bottom surgery, puts the case from dysphoria in stark terms: “Their pain and anguish is great and there is no doubt that they are suffering… We have permitted other procedures for mental ailments and have said that the mental illness [sic] is to be treated in the same way as a physical one” (21). As Rabbi Jamie Weisbach, who described the limitations of a pikuach nefesh approach in his recent teshuva, has put it to me, bedieved psak that relies on pikuach nefesh puts queer and trans Jews in the position of constantly evaluating our own suffering. In order to determine if we qualify for a pikuach-nefesh based exemption, we are forced into thought patterns like, “Am I going to self-harm if I don’t daven on the women’s side of the mechitza today?” Imagine the psychological burden placed on a non-binary Jew who gets married on the strength of such a leniency—if they ever stopped being at risk of self-harm, if they achieved precisely the happiness that motivated their psak l’kula, would their marriage become invalid? Even if not, what does that psak teach except that queers are worthy of little more than tolerance? Lives cannot be built on this kind of dysphoric halakha, yet building fulfilling and sacred lives in the light of the Torah is the purpose of the halakhic process.
Harm 3: Dysphoric Limmud. Trans Jews have always existed, so we have never been absent from the tradition. Ignoring this reality leads to dysphoric limmud. Dysphoric approaches to halakha impair our ability to listen deeply to the sources and learn new insights from them. Transphobic assumptions are relics of not fully integrating the reality of trans and non-binary experiences. They are perhaps the largest obstacle to the kind of listening required to practice euphoric halakha. Examining these assumptions to uproot them is part of the work of trans halakha.
Dysphoric readings of the sources come easily when you assume that we are absent from the tradition. Sharzer’s analysis of the core verse commanding bris milah makes one dysphoric assumption after another:
The question boils down to this: To whom does the mitzvah of milah apply? The Torah says:
זאת בריתי אשר תשמרו ביני וביניכם ובין זרעך אחריך המול לכם כל-זכר: [בראשית יז:י
This is my covenant between me and your descendants after you which you must preserve, circumcise every zakhar. [Bereshis 17:10]What is meant by zakhar, usually translated as “male,” and does the category include someone who is female identified? The various dimensions of human sex and gender discussed above [genetics, hormones, and identity] were unknown to our ancestors. For them, gender assignment was exclusively on the basis of genital anatomy. They understood the word zakhar to refer to someone with male genitalia. Excluding conditions such as nolad mahul or congenital anomalies of the genitalia, that is who is obligated for the mitzvah of milah. In short, the mitzvah of brit milah is based on anatomy rather than gender and applies to any person with a penis. (25)
Sharzer’s question—“What is meant by zakhar?”—is the correct one, and it remains the subject of debate among trans Jews. His answer, however, is based purely on what he feels like is true about the past. Aside from the Bereshis verse, he does not cite any sources to back up his sweeping, categorical claims about gender in the ancient Near East. His first claim is that “[t]he various dimensions of human sex and gender discussed above were unknown to our ancestors.” Leslie Feinberg already trod that worn-out ground for us in Transgender Warriors: “Surely transsexual women and men, or people like me who expressed their gender differently, were not merely products of a high-tech capitalist system in decline. I came full circle to one of my original questions as well: Have we always existed? I felt further from an answer than ever before. Fortunately, feelings are not facts” (18). Ze goes on to cite historical evidence of gender diversity from across the globe. Sharzer’s ruling that milah applies based purely on anatomy flies in the face of this evidence. Even if there were no evidence, a feeling about what the past was like is not a sufficient basis for a ruling. All we can learn directly from Bereshis 17:10 is that males are obligated in milah. The verse does not define what a male is.
Baronofsky makes a similarly baseless assumption: that “[i]n the classical sources, discussion of the gender binary revolves entirely around observable biological differences” (49). Rabbi Elliott Kukla has already argued that our presumptions about gender lead us to misread Jewish sources in their 2006 article A Created Being of Its Own (5). When we presume to already know what Chazal thought gender is, we prevent ourselves from learning anything about gender from the mesorah. We have in effect already imposed our answers to the real questionswhat is gender and what is its role in a Torah-observant life?—and we leave ourselves only with the soul-crushing task of determining which box will do the least harm.
This dysphoric limmud, in which our presumptions about the nature of gender infiltrate our reading of texts and lead to transphobic rulings, is a manifestation of the same kind of transphobia that motivated the Florida ban on gender-affirming care for trans youth and 80% of trans adults in the state. In his ruling blocking SB254, Judge Robert Hinkle names the elephant in the room: “Any proponent of the challenged statute and rules should put up or shut up: do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.” The unsubstantiated, overarching claim that the Rabbis only cared about anatomical “sex” difference functions as a kind of dog whistle that allows those who hold by it to say that they accept us without accepting that we are real, without internalizing that gender diversity is a fundamental feature of the human experience, and without appreciating that our experiences as trans people are valid—not in the superficial sense that you shouldn’t question them but in the sense that they reflect realities of gender which have always existed just as fully as cisgender male and female.
We do not want psak that is based on the premise that our genders have not always been real. Accepting us means accepting that we have always existed. We are not a new thing under the sun—our lineage runs through the generations. For someone to integrate a reality they used to deem impossible, there must be a process of rereading the texts and reassessing the core assumptions upon which they used to rely and have now invalidated.
Theory, Part 1: Working Towards Euphoria. How can we challenge and uproot dysphoric assumptions about our sacred texts? The next two sections form a mini-essay laying out a religiously grounded theoretical framework for how to read the mesorah euphorically. In order to offer a robust analysis, I use more technical language and argumentation here than in the rest of the essay.
I find it helpful to begin the process of euphoric rereading by affirming the fundamental principle that the word of God is true—Hashem gave a Torah of truth to us through Zir prophets. The Rambam derives two interpretive corollaries from the fact of the Torah’s truth:
Nothing in the Torah can contradict scientifically proven facts (see Guide Introduction and Commentary on Mishna Sanhedrin 10); therefore,
“…those passages in the Tanakh, which in their literal sense contain statements that can be refuted by proof, must and can be interpreted otherwise” (Guide 2:25).
Following the Rambam’s interpretive strategy, if you really believed it were true that there are more than two genders, you wouldn’t claim that the Torah says that there are. It is impossible that Bereshis 1:27 should mean that “humanity [is] fundamentally binary” (47), because as Baronofsky acknowledges on the same page, that would contradict a scientific fact.
Now Baronofsky in fact ascribes that interpretation to Chazal, and Rabbinic texts cannot be held to the same standard of absolute truth as the Torah. Statements in the Talmud do sometimes contradict scientific fact. Rambam himself contended with the ways in which Chazal’s cosmology conflicted with astronomical evidence. He admits that not all of the Sages’ statements about astronomy are reconcilable with fact, but “merely on this account I will not claim about their correct statements that they are wrong or that they are correct only incidentally. Rather, every case where we can interpret a person’s words such that they agree with a proven reality, that is the most preferable and correct thing for a thoughtful and honest person to do” (Guide 3:14). In other words, we do not need to assume that Chazal were always correct about sex and gender, as any woman who studies hilkhos niddah will tell you. However, in every instance where Chazal’s words can be understood in line with the reality that trans people exist, we must make such interpretations. I will also add that it is disrespectful to our Sages to simply assume, based on our own prejudices about the past, that they hated trans people or had no idea about us. Trans people have always existed; we were here before, during, and after the Talmudic era, and there is every reason to believe that Chazal knew about us—if indeed we were not among their number.
The fact that our presence in the sources is not obvious should not deter us or diminish our faith in the wisdom of Chazal. It is well known that queer and trans narratives are encoded in historical documents in such a way as to obscure or erase their presence. As Amy Stone writes in Queer Persistence in the Archive, “The structural forces that marginalized queer communities historically have also hidden and obscured queer history, leading to omissions or obfuscation of historical documents in established archives...leading to the importance of persistence and serendipity in research outside the queer geographic center” (217 in Other, Please Specify). And as Brian Lewis acknowledges in his introduction to British Queer History, we are dealing with “acts or identities that once struggled (at least in official discourse and polite circles) to be named at all.” In other words we should not expect to find clear-cut discussions of transness or gender non-conformity in most halakhic sources. But such apparent absences do not indicate that we are not there, and they do not automatically invalidate readings which assume that the Rabbis did know about us.
Yet we have not been satisfied with assuming that Chazal was aware of gender diversity. Trans and non-binary Jews have already worked to prove that our Sages knew about us. Binya Koatz’s work Toldot Trans is a thorough demonstration of how to persist in queer Torah research and to name the identities that struggled to be named. Among the examples of our ancestors who “have some kind of gender/sex magic going on,” she brings the midrash that Adam haRishon was an androginos, the Amoraic statement that Avraham and Sarah were tumtumim, Yosef’s midrashic femme presentation and Potiphar’s aggadic queer attraction to him (them? her?), and Rabbi Yochanan’s female beauty. Even if Chazal lacked the words “trans” and “non-binary,” they knew the truth. And if these hints at our historical presence are hidden in midrash and aggada, we can expect them to be as well-hidden yet just as present in halakha (5).
Theory, Part 2: Rereading the Sources. In the previous section I argued that Rambam’s interpretive strategy that all Talmudic statements which may be understood as aligning with reality must be so understood is well-positioned to serve as a principle for a euphoric approach to halakha. Let me offer three examples of how almost any traditional source dealing with gender can be read both ways, either supporting the incorrect, compulsory-binary approach to mitzvos or a genderqueer-positive range of approaches which align with reality. Having argued for the general plausibility of “reading both ways,” I will then put forward a case for an analytical method specifying how a source may be read euphorically and explain why this method can be applied to any source in the mesorah.
Example #1: The case of tevilas gerus. On Yevamos 46a we encounter a baraisa that teaches, “A case where a convert did tevilah but not milah: Rabbi Yehoshua says they are a valid convert, since that is what we find in our mothers [at Sinai], that they did tevilah but not milah.”
The compulsory-binary approach. One could easily read this statement as proof that womanhood means you don’t have a penis, especially given the Gemara’s explanation of R’Yehoshua’s position on the following ammud: “Where did R’Yehoshua get it from that the mothers did tevilah? Logic, since how else could they have entered under the wings of the Shechina?!” This clearly implies that they could not have done milah due to their lack of genital foreskin.
A gender identity-first approach. One could just as easily read this source the other way, as proof that trans women are not obligated in milah. “Our mothers did not do milah”—none of our mothers, including our trans mothers. “How else could they have entered under the wings of the Shechina”—everyone knows milah is only a mitzvah for men, so what kedusha would there be in a woman circumcising herself, even if she could? Circumcising the foreskin of a woman’s penis does not fulfill the mitzvah, and therefore has no power to bring her under the Shechina’s wings.
A genderqueer anatomy-first approach. A third reading might assume that the Talmud is speaking imprecisely according to the most common case—here, that most women don’t have anything to circumcise, so they could only have done tevilah—but in a case where a woman does have a foreskin, it is of course a mitzvah for her to be circumcised (6).
This set of readings is not exhaustive; it is only an attempt to offer a representative range of euphoric reading strategies. Whichever of these readings feels more appealing, this source cannot be read to prove unequivocally that mitzvah-observance must be based on anatomically assigned gender alone. On the contrary, when we do not assume that the tradition must be dysphoric, we lose a great deal of the motivating force driving the compulsory-binary reading.
Example #2: The case of “the place where gender is recognized.” Rabbi Tanchuma teaches the following interpretation of Bereshis 17:12 in Bereshis Rabbah 46:5: “The verse ‘and an uncircumcised male’ makes sense, for is there in fact such a thing as an uncircumcised female?! Rather, [the verse means that] it is in the place where it can be recognized whether they are male or female that we circumcise him.” According to Charlotte Elisheva Fonrobert this is the closest expression in Chazal to a definition of gender. Yet this too can be read both ways, dysphorically or euphorically.
The compulsory-binary approach. By one reading it seems obvious that R’ Tanchuma defines gender as an exclusively disjunctive binary according to observable external genitalia at birth. All you have to do is take a look to recognize whether it’s a boy or a girl. (Of course Chazal is explicitly aware of cases where even this simple heuristic is not so straightforward, namely with androginosim and tumtumim.)
Genderqueer-positive approaches. Other readings are equally plausible. Given that this statement is made in the context of how to fulfill a specific mitzvah, there is no need to assume that it is definitive beyond that context. Or R’ Tanchuma believes that, milah being gendered, we are forced to determine the gender of 8 day-old infants and the only way to do so is by using the sole possible sign of gender present at that stage in a person’s development. Indeed as we mature there arise many places in which a person’s gender can be recognized, and very rarely do we recognize anyone’s gender by looking at their genitals—so R’ Tanchuma’s drash of the verse is minimally not an exhaustive determinative procedure. Or R’ Tanchuma was not speaking normatively at all, just describing the minhag at the time (7).
While each of these readings has its flaws, there is nothing inherent in the source itself that forces us to choose one over the others. These kinds of readings from both angles can be done on virtually any source in the tradition that touches on gender. We are wrong to bind the mesorah to the ungrounded, dysphoric assumption that gender is disjunctively binary. When we release ourselves from reading transphobia into our texts, we are empowered to learn something new about gender from them.
Theory, Part 3: The Analytical Model. I claimed in the previous section that any Talmudic source about gender can be read either dysphorically or euphorically. Even if the examples I have offered above are convincing, why should it be the case that any source can be read euphorically? First, recall that the term “euphoric reading” does not necessarily mean an interpretation that makes a trans reader feel good; rather, a euphoric reading is any interpretation that aligns with the reality that trans people exist. I cannot conclusively prove this claim about the Talmud without offering readings of every single such source. Above I provided interpretations of the source which most directly threatens the assertion that Chazal did not define gender exclusively based on anatomy—if the most challenging source can be read euphorically, there is reason to think that less difficult texts are amenable to such readings as well.
There is also a theoretical analysis that backs my claim that any Talmudic source can (and therefore should) be read euphorically. Even transphobic poskim, as well as all the cisgender poskim I have cited so far, acknowledge that Chazal did not distinguish clearly between sex and gender. For them, this fact is a reason to read dysphorically—but absent a presumption of transphobia, the lack of distinction between sex and gender supports euphoric readings equally well. Following Fonrobert’s argument that Bereshis Rabbah 46:5 is as close as Chazal get to a definition of gender, we can ask: why is there no clear-cut definition of gender in the classical sources? This refusal to define is in harmony with the cluster model of gender, which understands human gender as a loose set of associations among elements, such that if a person has enough, but not necessarily all, elements associated with a given gender, then that person is a member of that gender (8). Elements in a gender cluster include sociocultural markers, anatomical sex features, and more. According to this theory, Chazal did not distinguish sex from gender because sex is always already entangled with gender, and they did not define gender because gender is not fully definable (9). Dysphoric readings begin from the implicit assertion that because sex and gender are not distinguished, they are entirely contiguous—in other words, that sex is gender, as we have seen in Sharzer’s assertions about milah. In contrast, euphoric readings proceed from an analysis of which element(s) of the gender-cluster are at play in a given text. My “gender-identity first” reading of the tevilas gerus case, for example, takes the fact of womanhood to be the sole determinative element, while discounting the anatomical element (the penile foreskin) as a factor in what we can learn about gender from the text.
One more reading will demonstrate the analytical potential of the cluster model of gender for reading halakhic sources. The case involves upsetting and graphic discussion of sexual assault and coercion—unfortunately, such cases are often primary sites where the meaning of gender gets constructed, so a serious analysis of gender must engage with these topics.
On Yevamos 53b, the Mishna teaches that in a case where a man is forced to have sex with his yevamah (his dead, childless brother’s widow), that forced sex act is sufficient to acquire her as his levirate wife. The Gemara wonders how such a case is possible: “What circumstances is the Mishna’s ‘male rape’ case referring to? You might want to say it is that non-Jews forced him to have sex with her, but Rava has said that when it comes to forbidden sexual relations, men cannot be raped, because erections are always [indicative of] intent.” This challenge is resolved by saying that the Mishna’s case is one where a man gets an erection with the intent to have sex with his wife but is then forced to use that same erection, as it were, to have sex with someone else.
This sugya seems to present the compulsory-binarist’s dream argument for the penis as the sole determinant of maleness. If men are generally not sexually assailable because their erections are proof that they “always want it,” then how could we avoid concluding that anyone with a penis is a man? The most obvious strategy would be to isolate the element at issue—the erection with its implicit intention—from gender entirely. Rava on this reading would not be teaching us anything at all about men, but about the nature of erections irrespective of the gender of the aroused person. However, the cluster model could only sustain such a reading in a world where erections are not elements in any gender cluster. In other words, do we really believe that erections have nothing to do with gender? We ought not to make such an assertion without examining the extent to which it accords with our reality (10). Moreover, on this isolationist reading, we would be including most trans women in the category of unrapeable people. Although there is no morally unproblematic way to read Rava here, we should be very careful not to make the problem worse for one of our most vulnerable populations (11).
Does the cluster model of gender offer us a more compelling, reality-aligned, even euphoric interpretation of Rava? First, keep in mind that Talmudic statements about gender are never cleanly separated into their elements; we will always need to disentangle the gender cluster. Re-read Rava’s statement with an eye towards what clusters around gender: “When it comes to forbidden sexual relations, men cannot be raped, because erections are always [indicative of] intent.”
I identify three elements at play here:
male identity (“men cannot be raped”)
penile erections (“because erections are”)
and intent (“always [indicative of] intent”)
The Tosafos on Sanhedrin 74b (s.v. veha Ester parhesya havai) bring in the additional element of activeness, as opposed to passivity (12).
For Rava, these four elements generally go together, but that does not mean that they must go together or that the presence of one necessarily entails the presence of the others. Each one of these elements may be understood as Rava’s primary concern, with the other three towed along by the force of their gender cluster:
If the primary concern is male identity, then Rava would be saying that any man who can get erect and does is considered to have intent—but if someone who is not a man gets erect, then that erection communicates nothing about their intent.
If the erection itself is Rava’s primary concern, then perhaps Rava means that erections always communicate intent regardless of gender, but absent (other) male-clustering elements an erection on its own is not sufficient to say that a person cannot be assaulted.
If intent is Rava’s primary concern, then the (male) erection is merely functioning as one kind of evidence of intent, which may be overridden by other evidence, such as, say, witnesses who testify that he declared he did not consent.
And if activeness is primary, then in a case where he is not actively participating in this forced sex act “despite” his erection, Rava would presumably agree that he has been raped.
Again, none of these interpretations escape the fundamental moral problematics of a statement to the effect that a certain kind of person cannot be raped. Nevertheless the cluster model of gender gives us a robust framework for disentangling the sugya from presumptions of the compulsory gender binary—we now have at least four different readings, all of which meet Rambam’s criterion of “agreeing with a proven reality.” To be clear, the reality these interpretations are in agreement with is that trans people exist, rather than any reality regarding sexual assault, intentionality, and arousal. Note that all four interpretations center a single element without disregarding or eliding any of the others. Note also that it is possible on this model to read Rava as centering multiple elements at once.
If the cluster theory of gender is an appropriate framework for analyzing Chazal’s statements about gender, then there is good reason to think that all such statements are susceptible to euphoric analysis. When it comes to the practical work of issuing halakhic rulings, given that Chazal did not have our distinction between sex and gender, we must keep in mind that the factors that can tip our hand towards one element or another in the gender-cluster are radically context-dependent, and we should demand a high level of rigor in determining which elements are at play and which have determinative force.
The Euphoric Trans Halakhic Landscape.
Seeing that any source could be read any number of ways equally well, where does that leave us in our endeavor to learn about gender from the tradition? As we should expect from a process of queering gender, responses to this question abound. In this section I present a broad survey of the euphoric trans halakhic work that has been done so far. It should serve as a useful quick-reference for allies and poskim looking for trans voices to guide them.
I see three broad approaches to gender in halakha that have emerged from trans Jewish discourse: one-to-one mapping, perpendicular categorization, and categorical revolution. Each has a parallel in movements within the broader trans discourse about our role in society at large, namely: assimilation, sacred positionality, and gender anarchism.
One-to-one mapping/Assimilation is the approach that says that our genders, as trans and non-binary Jews, are the pre-existing articulated genders in halakha, including androginos. Baronofsky’s essay is a non-trans example of this method; her purpose is to map non-binariness onto the gender of androginos, assimilating genderqueer identities into a framework which would remain minimally altered. Trans examples of one-to-one mapping include:
Rabbi Xava de Cordova’s teshuva on trans female niddah, in which she takes for granted that trans women are women and our Torah obligations map onto the category of nashim just as is the case for non-trans women;
Alyx Bernstein’s exploration of whether trans cases of milah and niddah map onto similar androginos cases (she concludes that they do not);
and the first part of my essay Be Whole in which I argue that we may presume that binary genders, whether held by trans or cis Jews, map perfectly onto the Torah categories of male and female.
There are also mapping approaches that are not one-to-one. A framework proposed by my non-binary colleague Shlomo-Shleimah would allow for a person’s gendered obligations to change based on context; for example, a certain kind of non-binary Orthodox Jew might need to sit on the men’s side of the mechitza one day and on the women’s side another.
Assimilationist approaches are complex. On the one hand, they offer immediate access to protections via legible communal membership, and they usually lead to the greatest amount of actionable power in the least amount of time. They tend to be more broadly acceptable, so they gain more traction than other approaches. If our goal is to lead normal, happy lives in the communities we find ourselves in, an assimilationist approach is a good choice. But in asking to be just like everyone else, we end up becoming just like everyone else, and we strip trans identities of their positive content.
Perpendicular categorization/sacred positionality situates transness as a category in itself that intersects, but is not subsumed within, the axis of gender. Perpendicular categorization means that trans people have a unique role to play in the world, or at least that there are certain roles to which the fact of our transness makes us well-suited. This kind of theory can be seen in the compound identifier “trans woman”—that is, my identity is composed at the intersection of transness and womanhood. The practical consequence of transness as an independent category is to give trans identities meaning and content. In broader American discourse that meaning is most often found in the history of trans people filling roles of sacred service, such as shamans, priests, and spirit bridges. This thread of contemporary trans spirituality owes itself to Transgender Warriors. I articulate one version of halakhic perpendicular categorization in the second part of Be Whole, where I argue that gender transition is a mitzvah with far-reaching halakhic and spiritual ramifications. Soloman’s concept of dysphoric/euphoric halakha, while broader in scope than any of the approaches I am describing here, lends itself to a perpendicular categorization approach when taking maximally the imperative that trans encounters with Torah should reveal new understandings. There are many examples of the sacred positionality framework throughout trans Jewish writing, including Koatz’s Toldot Trans, Tefillat Trans, the zine Timtum, and Rabbi Abby Stein’s source sheets on transness. Perpendicular categorization approaches tend to center trans empowerment, sometimes at the cost of separating trans people from normal life.
Categorical revolution/Gender anarchism refers to any approach that responds to the fact that gender is more than disjunctively binary by dismantling or radically reconstructing the boundaries of gender itself. They do not always reject gendered categorizations or refuse to reference gender, but they are invested in exploring the unknown territories that lie beyond historically harmful conceptions of binary gender. They tend to prioritize the elimination of oppressive and unjust ideas, which are understood to be counter to truth. Published halakhic examples of categorical revolution include:
brin solomon’s tshuvah Conversion & Circumcision, as in the line of thinking by which a synthesis of “the notion of gender diversity with an infant’s inability to communicate the full nuance of their inner lives” leads to a preliminary conclusion that milah should become divorced from gender entirely (9-10), and
Rabbi Jericho Vincent’s tshuvah on taharas hamishpachah, where they argue that the heretofore unevenly gendered obligations of niddah should be practiced by people of all genders, on the basis of the equality of women and men as full humans.
A gender anarchist approach to mitzvos was also expressed to me by a colleague, who envisions a world in which gender is never determined, and each person’s status—whether male, female, both, or neither—is arrived at contextually and iteratively, not once and for all but anew as each new circumstance arises. At the heart of these approaches is a lack of unilateral prescriptions, insofar as they tend to cause harm; rather, the focus is on attentiveness to each person’s circumstances without generalization. This approach tends to have the significant disadvantage of being in the greatest tension with the principles of halakhic discourse.
Approaching Trans Halakha
We are living in a time of flourishing queer and trans Torah. Amidst an already thriving landscape of trans Jews striving to know ourselves in the mitzvos, I am glad that more of our cis and straight fellow Jews are realizing trans Jews exist, and that we are all working to fully accept the ramifications of our reality. On one level, the more conversations that happen in Jewish communities about and with trans people, the better it will be for the Jews. But the kind of visibility granted to trans Jews matters. The wrong kinds of attention make us less safe and drive us out of our communities, as can be observed across much of the United States right now. Without acceptance—not as mere acknowledgment but as whole relationships in which we can know and be known—visibility is dangerous. So these conversations must not happen without us. We must center what is positive about trans experience, and we must unlearn the dysphoric assumptions infused into the tradition.
It is time to clean the dead flies from the oil of Torah. Not one more trans Jew should have to compromise on their euphoria in order to live a life of mitzvos. Not one more trans Jew should be forced out of their community because of who they are. Not one more of us should have to fight for our birthright to serve Hashem with our whole heart, whole soul, whole self. If any of these are happening to you—please reach out to me and I will do my best to walk with you and support you. May this guide to approaching trans halakha already be outdated by the time you read it.
Rav Avigayil writing here again: as a reminder, if you found this article inspiring, useful, essential — you should compensate Lexi for her time and expertise! That is the only way we get more Torah like this in the world!
(1) Baronofsky also ignores the existence of intersex people who might be a more intuitive reflection of the rulings associated with androginosim, assuming as she does that the category is based on anatomy.
(2) Susan Stryker compares the idea of trans monstrosity as external judgment to its reclamation as trans subjects in her classic essay My Words to Victor Frankenstein.
(3) Ben Efrayim explains that bottom surgery counts as crossdressing (לא ילבש גבר שמלת אשה) because “the man via surgical means is removing from himself the body of a man and putting on the body of a woman” (52). Compare Janice Raymond’s language in The Transsexual Empire: “All transsexuals rape women's bodies by reducing the real female form to an artifact, appropriating this body for themselves.”
(4) Is the fact that ben Efrayim sometimes correctly genders trans people proof that on some level he supports gender transition, if not gender queerness? He manages, for example, to get two correct genders in a row in his discussion of trans men’s obligation in niddah: “…is it permissible for this [cis] man to touch this woman who turned herself into a man regarding the prohibition of niddah, or perhaps we might require this [trans] man to immerse in a pure mikveh to remove from himself niddah impurity” (184, emphasis added). I do not give him any credit for this. Even transphobes who are actively trying to misgender us will sometimes slip up when speaking about binary trans people. Contrapoints in her video Pronouns frames it like this: “But I'd be bullshitting you if I only discussed fully integrated binary trans people. Everyone basically calls them by their pronouns already. Dingbats like Ben Shapiro have to exert conscious effort to continue the charade of misgendering them.” In other words, it’s far more likely that ben Efrayim got his hypothetical trans man’s gender right not because of any underlying allyship but simply because it’s easier to say “this man” than “this woman who turned herself into a man.” At a certain point he just got exhausted.
(5) See Trans Talmud by Max Strassfeld for an academic euphoric rereading of Talmudic sources.
(6) Thank you to Shlomo-Shleimah for providing this reading.
(7) See Be Whole: A Halakhic Approach to Gender and Transition, 7-10 for a more thorough treatment of this source.
(8) See An introduction to feminist philosophy by Alison Stone, 36-45. Stone develops her cluster model to theorize sex as distinct from gender, but the principle of a cluster model equally suits a Butlerian conception of sex as subsumed within gender. This article by Matilda Carter uses Stone’s cluster model to refute the “endogeneity constraint” which some theorists impose upon sex/gender to exclude trans people.
(9) More precisely, a corollary of the cluster model is that there can be no set of criteria which is always both necessary and sufficient to qualify a person as a given gender.
(10) The category shift described in Gender Equality and Prayer in Jewish Law by Rabbi Ethan Tucker and Rabbi Micha’el Rosenberg is a case of a coherent and (for certain communities) reality-aligned isolation of heretofore gendered elements from their clusters. I suspect that gender egalitarianism in prayer is unusual in its ability to sustain an isolationist reading, in part because of its unique discursive history in the halakhic sources and in part because the elements at play are exclusively sociocultural in nature rather than anatomical.
(11) To reframe the point using a popular yeshivish analytical tool, the cluster model makes any gendered cheftza/gavra chakiros, such as arguing that milah is a mitzvah on the cheftza of the foreskin and not on the gavra of the male, inherently fraught. The penis as cheftza is already contained within the cluster of maleness (and the transfeminine cluster) as gavra. It may not be possible to entirely discard or radically reinterpret the gendered language used in reference to specific body parts—at least, not without discarding the concept of gender entirely.
(12) The Tosafos there explain Rava’s statement like this: “If…they force him onto a forbidden sexual partner, and he knows that if they force him he will be unable not to get an erection, we cannot claim that that he did nothing—because an erection is considered an act. But if he were already erect and a non-Jew forced him onto a forbidden sexual partner, in that case certainly it is rape and he does not have to allow himself to be killed.”
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Lexi, looking forward to Masechet HaMigdar (though Sha’ar HaMigdar has a nice ring to it and might be a good intermediate step before it’s codified into Talmud).