Sunday, July 9, 2017

My Great Journey, part 8 H ( a continuation of the series on text exploration)

Should Gender Transition be Considered an Obligation for Trans*[i] Jews?

Introduction: This work is not a determination of Jewish Law. It is, rather, an exploration of a serious question of law. It is important to note that Judaism is a rabbinic religion, not a Biblical one.  We will explore Biblical and Rabbinic verses to help understand how seriously Gender Transition should be taken.  It is always advisable to contact a Jewish Law scholar for specific questions of Jewish law.

All translations in this work are my own. Commonly, God’s name is represented as The Lord. I use H’, which is short for HaShem, literally “The Name”. This avoids gender and status[ii] language.

 עַל-אֵלֶּה | אֲנִי בוֹכִיָּה עֵינִי | עֵינִי יֹרְדָה מַּיִם כִּי-רָחַק מִמֶּנִּי מְנַחֵם מֵשִׁיב נַפְשִׁי

 הָיוּ בָנַי שׁוֹמֵמִים כִּי גָבַר אוֹיֵב:

For these things I weep, for water streams from my eyes, because respite is out of reach to restore my soul, my children are desolate because the enemy overcame us. (Eikha 1:16)

Those of us in the trans* community have known tremendous oppression at the hands of others.  Some mean well but do wrong, while many others directly mean to cause harm, be it Conversion Therapy[iii], Excommunication, Exorcism, Being Kicked out of the House, etc.  

This trend is shown very clearly in the National Transgender Discrimination Survey (NTDS) 2015[iv]. This report states:

The findings paint a troubling picture of the impact of stigma and discrimination on the health of many transgender people. A staggering 39% of respondents experienced serious psychological distress in the month prior to completing the survey, compared with only 5% of the U.S. population. Among the starkest findings is that 40% of respondents have attempted suicide in their lifetime—nearly nine times the attempted suicide rate in the U.S. population (4.6%).

This is staggering.  Mental health issues surface at a rate nine times that of the general population.  As the report shows, this is NOT because trans* people are mentally ill, as is claimed by Paul McHugh[v]. Rather, we experience numerous, substantial amounts of external stressors that cisgender people don’t face.  These include the above named attacks, as well as inability to find or maintain work, access to basic healthcare – let alone transition related healthcare, housing, etc.[vi]

But, sadly, the biggest threat to trans* people comes from the “religious” community.  This can be in the form of a parent who might rather see their child dead than queer, a clergy person who tries to force conversion therapy, or worst of all, a government body making state policy based on religious law.  Sadly, the clergy person who is doing this is also violating such religious tenets as loving others as you love yourself, not judging, not putting out a stumbling block, etc.

So what are we to do?  Judaism has an answer for this.

Let’s examine a verse from Torah:

וּשְׁמַרְתֶּם אֶת-חֻקֹּתַי וְאֶת-מִשְׁפָּטַי אֲשֶׁר יַעֲשֶֹה אֹתָם הָאָדָם וָחַי בָּהֶם אֲנִי ה'

You shall preserve my laws and statutes, that a person does them

to live by them, I am H’. (Lev 18:5)

The rabbis added a very meaningful clause to this verse.

 אמר רבי יהודה אמר שמואל: ...(ויקרא יח) וחי בהם ־ ולא שימות בהם.

Rabbi Yehudah said in the name of Shmuel, (Lev 18:5) and live by them

that you should not die by them. (Talmud Bavli, Yoma 85b)

Rashi was the 11th Century French commentator par excellence on Bible and Talmud.  He wrote (Shabbat 128b) פיקוח נפש דוחה שבת: Saving a life overrides the (restrictions of) Sabbath.

רמב"ן ויקר' יח:ה: ורבותינו אמרו (יומא פה:) , וחי בהם, ולא שימות בהם,

ללמד על פקוח נפש שדוחה את השבת והמצות.

Ramban[vii], Rabbi Moses Nachmanides, of 13th Century Catalan, goes further on our verse: And our rabbis said (Yoma 85b) and live by them – that you should not die by them – to teach regarding saving a life, that it overrides the Sabbath and all the Commandments.

What a startling ruling! Saving a life transcends EVERY other Torah Commandment!  Thus when one considers the commandments that a trans* person must transcend in order to transition, there is in fact no violation.  Why?  Let’s explore some texts in the Codes of Jewish Law regarding suicide.  Many are of the impression that if one commits suicide they are not allowed a Jewish burial or mourning rites.  This comes from: 

המאבד עצמו לדעת אין מתעסקים עמו לכל דבר ואין מתאבלין עליו ואין מספידים אותו ולא קורעין ולא חולצין אבל עומדין עליו בשורה ואומרים עליו  ברכת אבלים וכל דבר שהוא כבוד לחיים:

(Regarding) one who commits suicide and is considered sane, we do not engage in any matters with him, we do not mourn over him or eulogize him, we do not tear our garments or remove our shoes. But we do stand in a row over him and say the Blessing of the Mourner as well as doing any item which honors the living. (Shulhan Arukh Yoreh Deah 345.1)

So according to this law, we don’t perform the mourning rites.  Yet people do not read further in this same section where a caveat is provided.

ג קטן המאבד עצמו לדעת חשוב כשלא לדעת וכן גדול המאבד עצמו לדעת והוא אנוס כשאול המלך אין מונעין ממנו כל דבר:

Minors who kill themselves while sane are considered as if they were not sane.  Likewise, for adults who kill themselves while sane but who “felt compelled”, like King Saul, we don’t withhold any mourning practices. (SA; YD 345.3) 

The Arukh HaShulhan, composed by Rabbi Yechiel Epstein in the 19th Century to make it clearer (note that this is not considered universally accepted) states:

כללו של דבר: במאבד עצמו לדעת תלינן בכל איזה תלייה כל שהוא; כגון לתלות ביראה, או בצער, או שיצא מדעתו... דחשוב כשלא לדעת.

In general for people who take their lives, we assign any possible reason to it; for instance overcome by fear, or troubles or insanity... that it is to be considered they were insane. Arukh HaShulhan 345.5

Rabbi Epstein, in summation, is stating that we consider anyone who commits suicide to have been suffering from some form of severe emotional stress. He goes out of his way to be lenient, to allow for Jewish burial and mourning, for someone who commits suicide.

So how is this relevant to our discussion?  We have already seen the staggering suicide attempt rate in the trans* community.  By the readings here, we see that one who commits or attempts suicide is to be considered to have been under extreme emotional duress at the time.  We have also seen that this duress, in the case of trans* people, is mainly due to external stressors found above.

Judaism places an extremely high value on living, such that the authors of the Shulhan Arukh sought to ban funereal rites for a suicide, yet this was, in effect over-ridden.  What might be the basis for this?  Let’s explore some texts to help with this.

Most readers will have already studied the Creation epic in Chapter One of Genesis.  In this epic, verse 1:27 states (doubled for emphasis) that we are created in God’s image.  Verses 2:1-3 go on to state that God completed the work and rested.  This text is used as a liturgical proof text for resting on Shabbat and keeping it holy.  Yet we’ve already seen that violating Shabbat to save a life is required.

What a powerful notion! To save a life, we even transcend the very acts that God did, in resting, even though we are created in God’s image.  Life is holy and we are to preserve it.  So, for instance:

 תנו רבנן: מפקחין פקוח נפש בשבת והזריז הרי זה משובח, ואין צריך ליטול רשות מבית דין. הא כיצד? ראה תינוק שנפל לים ־ פורש מצודה ומעלהו. והזריז הרי זה משובח ואין צריך ליטול רשות מבית דין ־ ואף על גב דקא צייד כוורי 

Our Rabbis taught we are required to save a life on Shabbat, and the one who is urgent in doing this is praiseworthy; and there is no need to get permission from the Rabbinic Court.  How so?  If one sees a child fall into the sea, one spreads a net and brings it up. The one who does this urgently is praiseworthy and they are not required to get court permission, even though he catches fish in the net. (Talmud Bavli Yoma 84b)

The most amazing thing about this requirement is that God rested on Shabbat and we are created in God’s image.  We even transcend what God did, in order to preserve human life.

But this section goes further, in discussing saving lives.  The rabbis explore what to do in a case of extreme hunger. 

משנה. מי שאחזו בולמוס ־ מאכילין אותו אפילו דברים טמאים, עד שיאורו עיניו.

Yoma 83A Mishna: (Regarding) one who is overcome by “bulmos” (ravenous hunger, e.g. faintness after fasting) – we feed them even unclean food, until the light returns to their eyes.

This is an exemplar of overriding a Torah commandment to save a life.  If no kosher food is available, we feed a person overcome by hunger, with any food that is available.

These laws are codified in the Shulhan Arukh, Orah Haiim, 328, which discusses the issues of life saving overriding the Shabbat. Similarly, in 618:9 for feeding an ill person non-kosher foods to save a life.

Thus, it is well established in Talmud and Codes, that to save a life overrides the Shabbat and Torah law.  So where do we go from here?  The NTDS and Erickson-Schroth show the many things that are done to trans* people, that put their lives in jeopardy.  Why do these things occur?  Transphobia takes many forms, but probably the most insidious one in the United States is people who take a false adherence to Bible and legislate it.

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  This, in practice, means that it is not legal in the US to legislate religious law.  Most Jewish people oppose such legislation, yet we are subject to it nonetheless.  

Further, many Jewish trans* people may be prevented from transitioning by a rabbi or family member who holds to a strict adherence to the Commandments that we must transcend in order to transition (removal of genitals, removal of beard, and cross-gender dressing).

It is well established by the NTDS that preventing a trans* person from transitioning is the proximal cause of suicidality.  Thus we are, in fact, violating Jewish law, if we prevent a trans* person from transitioning.  Rambam and Ramban state succinctly that to save a life overrides all Commandments. Further,

דאדהכי והכי ־ אם ילך לבית דין לישאל ־ אזיל ליה לאיבוד.

Rashi, Yoma 84B: So, regarding these and these, if one went to the Rabbinic Court to ask (for permission to violate the Shabbat to save a life), we consider him to have destroyed.

What a powerful statement, one who does not act in saving a life is considered to have destroyed that life.

So from these issues, we might infer that transitioning should be required to save the life of someone in extremis, or, preferably, to prevent a trans* person from getting to extremis.  As I stated in my introduction, this is not a determination of Jewish law, it is an exploration.  I encourage anyone who is Jewish and considering transitioning to consult with competent authority in their denomination or affiliation. However, remember that we are commanded to live.  SO LIVE!

[i] Trans* refers to any person whose gender identity or expression differs from the sex assigned at birth. Cf. for the most widely accepted discussion of this term.
[ii] While Jewish tradition sees God as the “Almighty” many people have differing views of theology that may not support this.  Eliminating status language makes this work accessible for all.
[iii] Paul Zucker, was previously Psychologist-in-Chief at Toronto's Centre for Addiction and Mental Health and Head of the Gender Identity Service until December, 2015. His position that conversion therapy would fix gender dysphoria got him fired from this position.
[iv] James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet, L., & Anafi M. (2016). The Report of the 2015 U.S. Transgender Survey. Washington, DC: National Center for Transgender Equality.
[v] McHugh, previously a psychiatrist at the Johns Hopkins Medical Center Transgender Service, wrote a long piece extolling the mental illness of trans* people as a justification for preventing transition.
[vi] Cf. Erickson-Schroth, L. ed. Trans Bodies, Trans Selves. Oxford: Oxford University Press 2014 for a much more detailed exploration of these issues.
[vii] Rambam, Rabbi Moses Maimonides, 12th Century Spain, writes similarly in Mishnah Torah, Hilkhot Shabbat 2:1-3

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