The Supreme Court ruling on the Equality Act last week was a welcome clarification of the law for many, but for others has been a source of anxiety. Historically, Orthodox Judaism has responded poorly to issues of sex and sexuality, but it is a mistake to attempt to rectify the sins of the past by piling errors upon errors. As Jewish professionals, our initial response must be nuanced and sensitive, while remaining faithful to our halachic values and current science.
We can neither take an uncritically inclusive view, nor can we exclude those who do not conform to stereotypical norms. We are dealing with our family. We therefore cannot take a simple line.
There are three principles to balance here:
• Inclusion: we never say to someone “You are the wrong kind of Jew, go away.”
• Realism: we cannot function legally if categories such as ‘man’ and ‘woman’ have no clear meanings; categories by their nature must exclude that which does not fit that category.
• Halachic integrity: our texts essentially view every human being as science does, either male or female, and where these two categories appear blurred, attempt to determine a definition for halachic purposes.
We find the intervention of Rabbis Jeremy Gordon and Natasha Mann of the (Masorti) New London Synagogue in this matter to be unhelpful, possibly even harmful to those Jews in our community who experience gender distress.
Rabbis Mann and Gordon write based on a teshuvah by Rabbi Dr Leonard Sharzer of the US Conservative movement, written in 2017 before the evidence of the harms of medical transition was common knowledge.
This teshuvah (pdf) rejects realism and is instead based on the now discredited claim not based in scientific evidence: that human beings are born with a fixed gender identity and that when this is not aligned with sex, it is crucial to align the body of a person with their gender identity to alleviate their gender dysphoria.
Sharzer repeats the now debunked claim that such transition protects people against suicide. Of course, we now know that if anything, medical transition makes suicide more, not less, likely and has no documented medium or long-term mental health benefits.
There are documented cases of individuals who were mis-advised by well-meaning modern Orthodox rabbis that if they transitioned, then they could enter a ‘heterosexual’ marriage with their partner
In our days, gay and lesbian Jews are being thrown under a bus. It is disproportionately gays and lesbians who are being sent to doctors to have their bodies changed and their sexual pleasure, function or fertility removed.
To the argument that this issue of ‘transing away the gay’ is a non-problem, we respond that aside from the situation in Iran (of gay men being ‘converted’ into trans women), within the Orthodox community the dangers are real.
There are documented cases of individuals who were mis-advised by well-meaning modern Orthodox rabbis that if they transitioned, then they could enter a ‘heterosexual’ marriage with their partner.
As Orthodox American Rabbi Aryeh Klapper observed, one reason why one must be absolutely clear that no person can change sex, either biologically or halachically, is that if you give people any hope that they can do this, some impressionable, desperate, distressed people might take you at your word, to their permanent detriment. The risk of this is all the greater given the stigma on homosexuality in Orthodox Judaism.
It is not always easy for Orthodox communities to include sexually non-stereotypical people, but halacha is more flexible than people may imagine. We must grapple with the difficult details of how to achieve this inclusion and reject simple solutions such as making believe they can change sex. They cannot.
Inclusion should not occur at the expense either of halacha or of being grounded in reality. That is the challenge to us all. Other solutions risk harming the very people we seek to help.
• Shira Solomons is a Jewish educator and religious education consultant. Rabbi Zvi Solomons is rabbi of the Jewish Community of Berkshire
