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FIU Law Review

Volume 11 Number 1 Article 10

Fall 2015

Religious Sex Status and the Implications for and Nonconforming People

Shawn Markus Crincoli Touro College Jacob D. Fuchsberg Law Center

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Online ISSN: 2643-7759

Recommended Citation Shawn M. Crincoli, Religious Sex Status and the Implications for Transgender and Gender Nonconforming People, 11 FIU L. Rev. 137 (2015). DOI: https://dx.doi.org/10.25148/lawrev.11.1.10

This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37792-fiu_11-1 Sheet No. 72 Side A 04/28/2016 10:11:02 , told her her told mechitza 2 ceremony ceremony (July 1, 2008), 2008), 1, (July and helped her her helped and EGISTER R a Catholic child being being child Catholic a bar 4 * ATHOLIC bar mitzvah C . The twelve-year old Miryam old twelve-year ATIONAL 1 N 3 bar mitzvah bar ) 4/15/16 4:51 PM ELETE D Orthodox Child’s Transgender Journey from Moshe to Miryam OT Shawn Markus Crincoli N From the time he was a toddler, Ben demonstrated demonstrated Ben toddler, a was he time the From (the ) and struggling at the Jewish day day Jewish the at struggling and synagogue) (the O 5 Boys Will Be Girls?, (D shul DOCX note 1. [God] knows I’m a girl,” a I’m knows [God] _4.15. supra INAL _F (June 12, 2014), http://forward.com/articles/199978/orthodox-childs-transgender-journey- Religious Sex Status and the Implications for Implications the and Status Sex Religious Debra Nussbaum Cohen, Cohen, Nussbaum Debra “Miryam” is a pseudonym. Cohen, McGovern, Also a pseudonym. Celeste Hashem “ The prognosis of happiness is murkier for Ben, Unfortunately, after Miryam transitioned, the of the lone Miryam’s supportive mother cancelled the cancelled mother supportive Miryam’s Transgender and Gender Nonconforming People Nonconforming Gender and Transgender Associate Professor of Law, Touro College Jacob D. Fuchsberg Law Center. RINCOLI 1 2 3 4 5 * M K ORWARD and couldn’t be with the women.”the with be couldn’t and F raised in Philadelphia. from-moshe-to/?p=all#ixzz34VdAv84T. gender nonconforming behavior. At the age of four, he told his father that he wanted to be a girl and did not want to grow up. Though there is no way to be certain that Ben is a transgender girl, these comments are indicative of 07 - C the ultimatum that she could “come and sit with the boys and wear a suit or just can’t come” to the synagogue. Miryam also switched schools from the local Jewish day school to a public school needs in of a transgender district students. familiar She with is the a authentic happy life.” Regrettably, “happiness young has also come at a “living cost in her terms of the Jewish life of her life. Jewish Orthodox whole family” and she misses the traditions of Orthodox synagogue in their tight-knit midwestern community delivered www.ncregister.com/site/article/15350. celebrates the time when a Jewish boy comes of age within and the becomes Jewish a people. Miryam had become depressed and withdrawn, refusing to go to impending this event. for preparing while school daughter begin the process of to [going like didn’t “I really socially to how prior her transition, describes Miryam and then medically transitioning. synagogue] because I always had to sit on the men’s side of the go through with her upcoming mother, to her as transgender and explaining why she not could out and coming to explaining mother, her as transgender C Y 37792-fiu_11-1 Sheet No. 72 Side A 04/28/2016 10:11:02 A 04/28/2016 72 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 72 Side B 04/28/2016 10:11:02 M K in 38 To 40 40 , C Y A A , 68 ENDER 11 (Matthew ,G ONITOR “No Way My EDIATRICS ORN P B (July 1, 2008), 2008), 1, (July [Vol. 11:137 11:137 [Vol. , 34 M HILDHOOD C ENDER EGISTER This treatment is is treatment This R 8 ,G , CNN (June 1, 2015), 173–179 (Joan Z. Spade & ONTEMPORARY OMOSEXUAL ATHOLIC H HRENSAFT C (2011); Emily W. Kane, Kane, W. Emily (2011); , 22 C E OSSIBILITIES P IANE HILDREN ATIONAL C , N AND AND , As Ben’s depression and non-conformity non-conformity and depression Ben’s As 7 ONCONFORMITY AND 28 (2015); D ) 4/15/16 4:51 PM N ATTERNS America’s Transgender Moment FIU Law Review Law FIU ELETE ,P HILD ONCONFORMING D C 6 -N ENDER OT N RISMS :G O Boys Will Be Girls? :P (D Listening and Learning from Gender-Nonconforming Children ENDER Understanding Children’s Atypical Gender Behavior: A Model Support G DOCX OMBOYS ENDER T TUDY OF THE G S , Brandon Griggs, _4.15. EALTHY H INAL 10 9 _F ISSIES AND Id. See e.g. AISING Celeste McGovern, McGovern, Celeste Id. S Diane Ehrensaft, America is currently experiencing a “transgender moment.” Following the advice of the psychiatrist, Ben’s parents are treating his Mental Mental health experts providing guidance for parents of gender :R RINCOLI 8 9 10 11 6 7 ADE ALEIDOSCOPE OF SYCHOANALYTIC www.cnn.com/2015/04/23/living/transgender-moment-jenner-feat/index.html. Boys Are Going to Be Like That!” Parents’ Responses to Children’s Gender Nonconformity P nonconforming children would recommend that Ben be allowed to lead in exploring and not be made to feel that his preferred is wrong or shameful. Rottnek ed., 1999) (exploring the likelihood that gender nonconforming children will grow up to be transgender). to opposed as , or bottom of my heart that we are on the right track. I thank God that we are Catholic.” premised in Catholic theology that gives primacy to the physical body and rejects the scientific and medical consensus regarding gender identity. The psychiatrist disputes the medical best practices and surgery are medically necessary treatment for many transgender people, indicating that hormones claiming that “effective therapy brings to children.” an end the of these by directing him toward stereotypical masculine activities and requiring him to recite making in me a special his boy.” According to Ben’s father, daily his child is happier prayers, “Thank and you, “you would think he is a well-adjusted happy boy. I just know from God, the for (2005); Nicole Crawford, Groups Helps Parents Learn to Accept and Affirm Their Gender-Variant Children K M 138 a child who is, at between gender a identity minimum, and the expressing expected discomfort gender birth. at assignmentsex of role or accompanying the incongruence 07 - C www.ncregister.com/site/article/15350. (2003). disorder to appreciate the bodies they were born in.” continued, his parents sought treatment. Catholic Unfortunately, psychiatrist they selected who a counsels “individuals with gender identity Catherine G. Valentine eds., 2d ed. 2008); Edgardo J. Menvielle, Catherine Tuerk, Ellen C. Perrin, the Beat of a Different Drummer: The Gender-Variant Child cultural reckoning has launched the existence of and experiences of (some) transgender people into the forefront of a national dialogue regarding sex, 37792-fiu_11-1 Sheet No. 72 Side B 04/28/2016 10:11:02 B 04/28/2016 72 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 73 Side A 04/28/2016 10:11:02 IVIL C GAINST A AMPAIGN C OVERT C 139 139 HE :T IBERTY L ) 4/15/16 4:51 PM ELIGIOUS R ELETE Religious Sex Status Sex Religious D OT N O EDEFINING (D ,R DOCX _4.15. Yet while there has been robust debate about homosexuality about debate robust been has there while Yet ICHAELSON 12 M INAL _F AY J (2013), www.politicalresearch.org/wp-content/uploads/downloads/2013/04/PRA_Redefining- (2013), From a human rights perspective, and people of faith are the In this essay, I introduce the concept of “religious sex status” to refer Meanwhile, Meanwhile, the strongest opposition to equality for LGBTQ people At the core of this inquiry is how religious doctrines or philosophy RINCOLI 12 M K IGHTS toward homosexuality. There possessing negative is attitudes also toward possessing LGBTQ a negative people strong attitudes as However, a toward correlation there group transgender between and denominations is view transgender and people gender non-conforming people or acts in no specific. definitive guide to how various religious villains in the stories presented in the beginning rabbi of this and essay. Miryam’s Ben’s psychiatrist religion and dictates parents “sex are status” for expressing each identity. a person without core They regard belief: for gender are respectively, to interpreting unequivocally Orthodox hold ontological truth. that This natal conception and sex of philosophic designation of religious assignment sex Catholicism, stemming sex from reflects theology, status akin to a is secular designation a of legal or legal affiliation . with There certain Christianity, is religious Catholicism a or denominations, correlation Orthodox such between Judaism, as and negative evangelical attitudes and designation of religious sex status in traditional Judaism.traditional in status sex religious of designation and treat assignment and reassignment of sex. person Or in understood other to words—how be is male a or within the (or framework even non-binary of gendered) individual a change religious this designation denomination? if And identity? the gender underlying the match one how assigned can to them an does not to the legal sex as understood philosophy, within or the law. purview of I religious complexity of legal sex assignment within the United States to the existence employ thought, a comparative approach to contrast the Religious-Liberty_March2013_PUBLISH.pdf. R 2015] gender, and gender identity. This increased visibility gender non-conforming of people transgender is and occurring in parallel awareness and with acceptance of lesbian, an gay, bisexual, transgender, increased and humanas rights. rights, civil as rights (LGBTQ) within the individuals. United States stems from religious organizations and 07 - C that discriminate against transgender or gender nonconforming remainsbeliefs unexamined.religious underlying these of exploration full people, a and religion, particularly in the policies favor often and organizations leaders and while religious marriage, context of those who oppose same-sex C Y 37792-fiu_11-1 Sheet No. 73 Side A 04/28/2016 10:11:02 A 04/28/2016 73 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 73 Side B 04/28/2016 10:11:02 M K C Y ENDER G (WPATH), AND AND [Vol. 11:137 11:137 [Vol. , EALTH H There are numerous numerous are There RANSGENDER 13 ,T RANSGENDER T ]. ARE C RANSSEXUAL T SSOCIATION FOR TANDARDS OF TANDARDS ) 4/15/16 4:51 PM A EALTH OF FIU Law Review Law FIU ELETE H D OT N O (D ROFESSIONAL P (2012), www.wpath.org/uploaded_files/140/files/Standards%20of %20Care, www.wpath.org/uploaded_files/140/files/Standards%20of (2012), DOCX ARE FOR THE EOPLE ORLD C P _4.15. W INAL _F See Nonetheless, this creates a large pool of Nonetheless, individuals this who creates maya large pool reject the Within Within the United States, roughly half the population identifies as The modern scientific and medical consensus regarding gender Religious Religious perspectives on transgender people are not necessarily There are different types of religious beliefs that can be incongruent RINCOLI 13 ONCONFORMING TANDARDS OF respectful interactions with transgender people in their while still affirmedholding the sex underlying status of the as individual that , which was assigned at birth for any religious marriage.for status sex ministryor the for eligibility or ritual purposes, including any expression in a manner that either directly or indirectly determines religious sex status based on natal howlimitedon manyis research there date, similarTo share tenets. doctrine sex. , Islam, Americans and hold Mormon these specific religiously transgender people, and not everyone prescribed affiliated with a denomination agrees beliefs concerning dictated. religiously belief every with gender identity of transgender people on religious grounds and understand transgender and gender non-conforming people ontologically as being only their natal, biological sex. Some adherents of these beliefs refuse to interact with transgender individuals in any manner identities. that recognizes A their more gender accommodating religious perspective may allow for religious denominations that posit a religious sex status that is biologically determined and fixed denominations do consider the potential for at religious sex status to shift via birth. acts of transition or It would consider gender identity to be the source should of this birth. at biology not status, sex be noted some religious affiliated with evangelical protestant Catholicism and evangelical Christianity or often define sex roles and Catholic gender denominations. Both N affirmation. identity is inapposite with beliefs in the existence of an underlying religious sex status within each person that is fixed at birth. 140 transition. of analogous to religious beliefs about gay and or same-sex marriage. of context the both in arise conduct and identity of considerations However, people. transgender and people LGBTQ or gender of transgender identity the gender and affirming with recognizing non-conforming people. One set of beliefs considers identity and sex status. The other set of beliefs focus on conduct, particularly as related to gender 07 - C S %20V7%20Full%20Book.pdf [hereinafter S [hereinafter %20V7%20Full%20Book.pdf 37792-fiu_11-1 Sheet No. 73 Side B 04/28/2016 10:11:02 B 04/28/2016 73 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 74 Side A 04/28/2016 10:11:02 , and and 15 . (2012) 18 ATTERS TATES 14 M S EX S HY However, this birth-based birth-based this However, NITED 141 141 19 :W U AW L.J. 731 (2008). L ASTINGS ITHIN THE ITHIN W &L.373 (2013). (2013). &L.373 , 59 H 59 , ) 4/15/16 4:51 PM EX note 13. S ENDER ELETE Religious Sex Status Sex Religious D G supra Ban Lifted on Medicare Coverage for Sex Change Surgery , OT OF NTERSEXUALITY AND THE AND NTERSEXUALITY N ARE ,I O .J. C (D ICH Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate DOCX Documenting Gender Documenting this designation may have serious consequences in how how in consequences serious have may designation this (May 30, 2014), www.washingtonpost.com/national/health-science/ban-lifted-on- REENBERG , 19 M 19 , 16 SSIGNMENT OF OF SSIGNMENT _4.15. In recent years, health practitioners have delayed sex sex delayed have practitioners health years, recent In A OST A. G TANDARDS OF TANDARDS 17 P INAL S _F ULIE See Id. Ariana Eunjung Cha, Cha, Eunjung Ariana Mottet, Lisa J Dean Spade, In the United States, when a baby is born, the doctors and nurses These religious beliefs are wholly inconsistent with the World Beliefs in a fixed sex status often lead to support for reparative or Transgender people often suffer because the sex markers on their birth In cases of ambiguous genitalia, the medical providers in much of the RINCOLI 14 15 16 17 18 19 M K ASHINGTON Gender Markers on Birth Certificates: A People Good Ttransgender Government Approach to Recognizing the Lives of assignment, while extensive infant’s medical biological testing sex attempts beyond practices what to now dictate that is doctors not “reveal” intervene until visible a child is the old to enough to the express a naked gender identity eye. and to Best consent altering to surgery or the other treatment body, and binary. not is male/femaleidentity of categories gender their if that people not be forced into binary assign sex based on external genitalia. This recorded assignment on is the then child’s typically birth certificate. Even ministerial though act, this recording is a Professional Association for Transgender Health’s Standards of Care assignment alone is not understood to be solely determinant of legal sex 2015] for transgender leaders individuals. For working example, for Christian Organization the for Marriage Family explain that Research treatment should be for “to Council help transgender men and people women and become comfortable with their born.” were actual they the how . . . respect “to and sex” biological National 07 - C related treatments are medically necessary for those suffering from gender dysphoria, the distress that birth. at assigned were they sex the as live to forced many transgender people experience when the consensus of the medical and scientific community that transition- certificates do not match their gender identities. W medicare-coverage-for-sex-change-surgery/2014/05/30/28bcd122-e818-11e3-a86b-362fd5443d19_story .html. doctors to surgically alter the child’s genitals to appearto moremalegenitals as alter child’s readily surgically the to doctors or female. American law will define and understand the sex of that individual. individual. that of sex the understand and define will law American twentieth century have assigned the sex that best fits the capabilities of C Y 37792-fiu_11-1 Sheet No. 74 Side A 04/28/2016 10:11:02 A 04/28/2016 74 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 74 Side B 04/28/2016 10:11:02 M K C Y [Vol. 11:137 11:137 [Vol. Via the lens of of lens the Via 23 The role of the birth certificate certificate birth the of role The 20 ) 4/15/16 4:51 PM note 13. FIU Law Review Law FIU ELETE D supra , OT N ARE O C (D Divorcing legal sex from medical treatment would would treatment medical from sex legal Divorcing note 16. note 19. 22 DOCX supra supra 21 _4.15. TANDARDS OF TANDARDS INAL Mottet, S Spade, _F Id. See See See The assignment of law (via recording on of sex at birth lies in the locus More critically, transgender and intersex people often suffer because of of because suffer often people intersex and transgender critically, More RINCOLI 20 21 22 23 legal realism, American judges and lawyers functionally understand that the law often acts to assign, categorize, and which independently exists. Nonetheless, the charade of judge as law-finder create, rather than identify that rather than law-maker, especially when the answer is supposed to rest with scientific and medical experts, allows actors perpetuate the within public the misunderstanding legal that system innate to sex; innate biology all too often meansthe external presence or absence of a biology defines legal penis. the birth certificate), medicine (the determination by nurses or doctors), and society (“It’s a boy/girl!” introduction to result, family sex and reassignment community). in As the a approach. Changing a person’s sex designation Unitedin the eyes of the law, either States often matches this within triadic identity documents or purposes, in often categorizing requires the Professional individual Association social for Transgender Health (WPATH) recommends in for and/or legal medical the transition. Standards of The Care that World medical aspects linked to of the understanding of transition legal sex, including ought the right to not any legal to or be identity document. as a recording of sex assignment at birth is mitigated in those locations that permit this document to be altered as part of the process of socio-legal sex reassignment. 142 under American law. In fact, in definition of what makes an individual legally a man the or a woman. Different United States, there is jurisdictions and no different policy-makers singular within these jurisdictions rely on different aspects of biology, identity, and legal documents to define constitutes legal sex and for what what purpose. 07 - C in and of itself, remainsmedicalitself, to of connected and transition. in the societal expectation that external genitalia should determine legal assignment, even sex when the law does not say that it does. further the important goal of entity amorphous an transition, legal States, depathologizing United the in jurisdictions most trans people. However, in 37792-fiu_11-1 Sheet No. 74 Side B 04/28/2016 10:11:02 B 04/28/2016 74 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 75 Side A 04/28/2016 10:11:02 . AND AND , 28 (2012) OLITICS P DVOCACY RANS A T 25 EGAL FFECTIVE RITICAL L E ,C TATES S 143 143 UIDE TO UIDE IOLENCE V NCERTAIN :AG NITED U U AW L AMILY F ) 4/15/16 4:51 PM Best legal practices suggest an expensive expensive an suggest practices legal Best DMINISTRATIVE 26 :A ELETE Religious Sex Status Sex Religious D IFE approach to protect from future legal attack attack legal future from protect to approach TATUS IN THE IN TATUS L OT 24 S 27 N O RANSGENDER note 17, at 49. (D EX ,T S ORMAL (2011). EVI ONSEQUENCES OF THE OF ONSEQUENCES DOCX supra , N , supra note 17, at 48. at 17, note supra , , C AW L. L L PADE _4.15. S INAL EAN _F REENBERG REENBERG ENNIFER G D no often is sex legal nationalized a of recognition paper, this of scope the beyond is it Though J G Legal sex in the United States is an unusual conceit. It typically does Significantly, so many of the questions in which legal sex arises in When some law or policy requires that a person be categorized by sex, sex, by categorized be a person that requires policy or law some When However, transgender people, no matter how privileged, must also Transgender people who enjoy passing privilege and perhaps other IMITS OF THE OF IMITS RINCOLI 24 25 26 27 28 L M K “belts and suspenders” not matter or even appear to . . . exist until it does. Greenberg notes that “a person’s legal sex is significantly less important now than it has been at any other time in history” because of the “gradual disappearance of sex based laws.”our in distinctions example, when the person wants to marry or must be housed with others. In a worst case scenario, custody of children can hinge on how an adversarial America America are in the relational or communal context. Legal sex matters, for because “a person’s legal sex could change as even a “vary within a state state depending on whether the state line is determining the is crossed” or ability to marry, to use public restrooms, or identity.” to gender person’s the carry match that a indicator sex and name a driver’s with . . . license 2015] 07 - C absence of a clear and universal demarcation lends itself often to diverse, discriminatory, and, practices. As random. at distributed hardly is gender policing of process Spade discusses, the administrative such as for the purpose of marriage or housing in jail or a shelter, the panacea to trans or intersexor either. trans people to panacea THE which she is framework. seen as a woman in the grapple societal with the cis-heteronormative recognition legal of sex or uncertainties gender. that come with no nationalized societal privileges, such as race and class, can go about daily lives without reflecting much on whether they even have American one law. legal A sex trans recognized woman by born in Florida a with identification yet male other sex marker, and may a have certificate birth living in Washington and citizenship documents, such as a driver’s license, passport, order, and that list her court as female. If she has socially and medically transitioned, including genital reconstruction surgery, she may easily navigate a world in C Y 37792-fiu_11-1 Sheet No. 75 Side A 04/28/2016 10:11:02 A 04/28/2016 75 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 75 Side B 04/28/2016 10:11:02 M K C Y (2006), (2006), ORAH T AW L [Vol. 11:137 11:137 [Vol. Kantaras Kantaras v. RANS (Noach Dzmura ed., ed., Dzmura (Noach , T EWISH J 32 For example, public public example, For 30 OMMUNITY 209–14 (Fred Rosner & J. David C EWISH J IOETHICS B RADITIONAL RADITIONAL T EWISH J in , ITHIN RANSGENDER IN W ) 4/15/16 4:51 PM :T FIU Law Review Law FIU ELETE D TATUS OT ECHITZA N S , to do so for them) eighth day of life. on the babies’ O M Even though some Jewish traditional texts discuss discuss texts traditional Jewish some though Even (D 31 EX Terms for Gender Diversity in Classical Jewish Texts Surgery S , www.jlaw.com/Articles/maternity_appendix.html. , mohel DOCX note 25. AW L Appendix: Sex Change Operations and Their Effect on Marital Status: A Brief _4.15. supra , and trained in biology, medicine, or related sciences, to to sciences, related or medicine, biology, in trained and EWISH INAL 29 ELIGIOUS . , J _F ALANCING ON THE PADE R Kantaras v. Kantaras, 884 So. 2d 155 (Fla. Dist. Ct. App. 2004). S Bleich, David J. B All but one Orthodox rabbinic authority consider legal sex in Judaism Jewish communities have always had children with intersex Spade’s harsh critique of the structural violence inherent within the In Orthodox Judaism, when a child is born, religious purposes dictate RINCOLI 29 30 31 32 halakha conditions. For example, Ashkenazi (Eastern European) have a high prevalence of congenital adrenal hyperplasia (CAH). In cases of ambiguous genitalia, the eight day time clock to assign sex creates pressure for Jewish an as of who group elite authorities are ethicists, recognized medical in determine whether the infant should be treated Jewish as law. a boy While or delays a girl are pressure to hold under ceremonies at the permitted, proper time, and the delays there is significant are communal understood communally to indicate an illness infant. or “problem” with the to be fixed at birth. (Jewish law) requires fathers to circumcise their sons trained agent, the (or typically hire a sex. assigning in essence the of is time result, a As legal system against transgender making legal sex an labeling act of and that control violence is perpetuated people explores the by empowered societal forces against the consequence individual. of non-binary sexed people, modern Jewish law operates with a sex binary; the malefemale. are or status sex religious for options only these spaces as individualized, functioning as a matter of the human right of the person to health and safety, versus communal, functioning as an effort to define who “counts” in the group of men or women other. as and seen are who those majorityexclude to cis-gendered the of rights protecting the debates over the access that transgender locker-rooms people may have be understood to as bathrooms a and conflict between those who view 2010); Rabbi Elliot Kukla, Bleich eds., 1989); Comparison 144 ex-spouse can benefit from legally the post-hoc operates sex to status Kantaras determination remove that parental rights, such as in 07 - C that the family and community understand the child’s sex status. 37792-fiu_11-1 Sheet No. 75 Side B 04/28/2016 10:11:02 B 04/28/2016 75 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 76 Side A 04/28/2016 10:11:02 He has has He of sex sex of 33 that serve serve that ? Orthodox halakha. . Others have halakha responsa halakha halakha 145 145 relevant to the issue of sex sex of issue the to relevant did rely on a phenotypic approach approach phenotypic a on rely did responsa halakha ) 4/15/16 4:51 PM ELETE Religious Sex Status Sex Religious D OT N O (D , wrote two DOCX 126, 126–48 (2012). Not Judging by Appearances: The Role of Genotype in Jewish Law on Intersex _4.15. HOFAR INAL _F , 30 S 30 , Hillel Gray, Gray, Hillel What makes a person male or female according to What a makes male or person according female In identifying why the genotypic rationale emerged, Hillel Gray posits Because traditional Jewish law or Catholicism, like many religious This can be contrasted with a realist perspective of legal sex, which Individuals with androgen insensitivity syndrome are treated according The one Orthodox rabbi who has publically validated the legal Tzitz Eliezer RINCOLI 33 M K provided evidence that approach Orthodox were authorities aware intersexuality favoring and of fearful of the the adopting a connection serve genotypic phenotypic approach that between as would transsexuality the and basis for recognizing the validity in www.transtorah.org/resources.html. that the rabbis in the 1970s and 1980s viewed genetic composition as more innate and authentic to the individual than the external body. assignment. within status sex competingon materialthe views source of as 2015] teachings, approach the legal category of sex from a positivist perspective, they rely on an essentialist perspective that there is an sex. on based individual an of classification the includes truth this existing truth, and would follow a social constructionist theory that sex status until is not created decision-makers impose or Religious sex status is an innate phenomenon to be uncovered by the world, assign a sex status rather than to something an that individual. is created or constructed through the act of 07 - C rabbis do not agree. Traditionally, Jewish tools decision-makers or knowledge had but no the ability other to observe external past forty years, genitalia. though, “opinion has been Over divided over whether to apply the a genotypic or phenotypic formula” to cases of intersexuality. In other words, some authorities have ruled that genetic makeup (i.e., the XY chromosome) should dictate whether an individual is male under reached decisions based on the external appearance of these decisions are often made privately, the there are a few body. Though Conditions reassignment in trans people. reassignmenttrans in to phenotype in Orthodox communities, an inconsistency decisions. pro-genotypic the in motivationrole a transphobic played the whichthat suggests of meaning in sex reassignment reassignment. Waldenberg was a leading authority in Jewish medical in the twentieth century and served as a judge on the Supreme . Rabbinical in Court to understanding sex status. Rabbi Eliezer Yehuda Waldenberg, known as the C Y 37792-fiu_11-1 Sheet No. 76 Side A 04/28/2016 10:11:02 A 04/28/2016 76 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 76 Side B 04/28/2016 10:11:02 M K 35 C Y . RANSGENDER IN [Vol. 11:137 11:137 [Vol. :T halakha concerning this this concerning ECHITZA M on medical treatments or or treatments medical on halakha halakha Each of these rulings is premised premised is rulings these of Each creates a clear, minority opinion in ALANCING ON THE 36 and sent Rabbi Waldenberg a letter letter a Waldenberg Rabbi sent and B 34 in , ) 4/15/16 4:51 PM responsa FIU Law Review Law FIU responsum ELETE D deals with organ transplants and raises the the raises and transplants organ with deals OT N only focused on external organs that can be seen by by seen be can that organs external on focused only O answering the doctor’s questions, Rabbi Waldenberg Waldenberg Rabbi questions, doctor’s the answering (D DOCX Judaism and Gender Issues responsum halakha 224, 224–28 (Noach Dzmura ed., 2010). _4.15. responsum INAL permitted him to surgically alter an XY male into a functional functional a into male XY an alter surgically to him permitted _F that phenotype is determinant, not genotype, and the act of of act the and genotype, not determinant, is phenotype that . Id. Id. Beth Orens, Beth OMMUNITY C In the A doctor read the first The combination of these I should note here that there is a difference between permitting the act Waldenberg Waldenberg discusses two outcomes in The first RINCOLI 34 35 36 halakha EWISH female, and if it was permissible to remove the singular testicle, in light of castration. against prohibition Biblical the announced that asking about a case in the hospital where he worked. The doctor describes a baby who was born with mostly female appearing genitals—labia and what appeared to be a clitoris. Yet the baby had a labia. single testicle Genetic in one testing of the determined that Invasive testing the found no baby male organs had inside the XY body. infant had This chromosomes.an androgen insensitivity suggests syndrome. The the doctor wanted to know if on the hypothetical having a male sex status within malestatus mana sex trans having hypothetical the on of transition (or, more accurately, acts of transition) and change recognition in of sex a status. Waldenberg is not specifically transition, so permittingthere is no official Orthodox authority for (medical) a trans person to do so. A full discussion of the prohibitions in the naked eye. So the internal organs, or lack thereof, was irrelevant. Since the organs appeared female, the baby should be treated as a girl by Jewish law. halakha changing external organs has the legal halakha effect of changing sex status in “woman who has many signs of being a visual sense” and, therefore, “is truly a man.” First, the man does not need a man which are apparent to the writ of divorce from a husband (no longer being the wife of a man). changed me into a man,” as opposed to the blessing (“who either cis-men has recite not made me a woman”) or (“who made me that according to his cis-womenwill”). replace in prayer Second, this man would say a morning blessing praising God “who has J 146 hypothetical case of “significant/organic alterations of the body, such as a person who changes from male to female, cases.” special in done “is that surgery or vice versa” through a rare 07 - C 37792-fiu_11-1 Sheet No. 76 Side B 04/28/2016 10:11:02 B 04/28/2016 76 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 77 Side A 04/28/2016 10:11:02 , 163 163 AW AND is that that is L halakha OMMUNITY C EWISH J halakha EWISH J . It balances the OMMITTEE ON , C 147 147 halakha determining that “only those those “only that determining RANSGENDER IN :T ECHITZA , both in Orthodox (Waldenberg) and responsum M (May 11, 2003), www.rabbinicalassembly.org/jewish-law/ ) 4/15/16 4:51 PM Status of ELETE Religious Sex Status Sex Religious halakha D SSEMBLY OT A N O also declines to rule on whether sex reassignment (D ALANCING ON THE Intersexed Bodies in : A Translation and an Activist’s Reading of of Reading Activist’s an and Translation A Mishnah: in Bodies Intersexed B DOCX in . ABBINICAL , R _4.15. INAL In one instance, the rabbi even promised that he would officiate a responsum This decision considers the traditional Jewish sources alongside alongside sources Jewish traditional the considers decision This halakha _F 37 . 38 Rabbi Mayer E. Rabinowitz, Dzmura, Noach Rabinowitz, E. Mayer Rabbi To summarize, transgender people, and often intersex people as well, The Dzmura describes Orthodox trans men and women he interviewed who The Conservative denomination’s philosophy toward In 2003, the Committee on Jewish Law and Standards of the RINCOLI 37 38 M K TANDARDS OF THE Mishnah Androgynos surgery should be viewed as permitted within and suffering of gender dysphoria with traditional Jewish teachings against castration and other medical intervention, and then question chooses for another time, when the Conservative to rabbis felt that they could leave this surgery. long-termof the effectiveness judge adequately are given a incongruent with who they biologically-based are, and under the majority position in sex status they are under granted Jewish no legal gender law mechanism identity. The within that most the progressive is religion decisions change for regarding sex the affirming status ability within to the WPATH (then Harry Benjamin) Standards of Care in effect at the time. The rationale for the ruling is based in a phenotypic understanding of in status sex S committee-jewish-law-and-standards/even-haezer. 2015] myof scope remarks. the beyond affirmingis gender act other any state that privately they have undergo medical received transition, including sex permission reassignment surgery, or that from the other rabbis rabbis to have knowingly accepted halakha a change in sex status according to 07 - C (Noach Dzmura ed., 2010). ed., Dzmura (Noach hypothetical wedding between an Orthodox transgender woman and a man.a woman and transgender Orthodox an between wedding hypothetical historically, the Conservative movement has been slow to adopt egalitarian practices. pro-LGBTQ and , Conservative movement, the issued a primary who decision-making have undergone body full phalloplasty/vaginoplasty) are to be considered as having changed their sex SRS for [sex reassignment status.” the surgery] (including Jewish law can and should be more dynamically interpreted. Nonetheless, phenotypic change in appearance suggest that even if of an individual follows the teachings the of a community or genitalia. Rabbinical Divergent leader opinions that accept the opportunity to affirm gender identity, Conservative (the Committee) Judaism, require surgery to achieve a C Y 37792-fiu_11-1 Sheet No. 77 Side A 04/28/2016 10:11:02 A 04/28/2016 77 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 77 Side B 04/28/2016 10:11:02 M K C Y [Vol. 11:137 11:137 [Vol. ONCLUSION ) 4/15/16 4:51 PM C FIU Law Review Law FIU ELETE D OT N O (D DOCX _4.15. INAL _F The modern scientific and medical consensus regarding gender The determination of religious sex status matters to how Given that there is no one designation of legal sex in the United States, fully RINCOLI 148 others who disagree will not status. The accept consequence this of determination this religious concerning reaching in terms of sex individual and communal practice, such as inclusion sex in status determination is far marriage.quorumsfor prayer or 07 - C potentiality both causes experience. already people transgender and contributes to the discrimination that religious denominations that posit a religious sex status that is biologically determined and fixed denominations do consider the potential for at religious sex status to shift via birth. acts of transition or It would consider gender identity to be the source should of this sex be status, not biology at birth. noted Even so, people well. as process with recognition the a some of out left non-binary be may gender religious transgender people can participate in religious community and worship. It mattershowviewalso in transgender faith of people themselves. it further opens the door for legal and religious decision-makers to rely on their own religious beliefs to determine how to assign or re-assign sex. This identity is inapposite with beliefs in the existence of an underlying religious sex status within each person that is fixed at birth. There are numerous 37792-fiu_11-1 Sheet No. 77 Side B 04/28/2016 10:11:02 B 04/28/2016 77 Side Sheet No. 37792-fiu_11-1