A very bad Rabbinic Court Decision

I will begin this discussion by noting that I am neither a Dayenet, a judge of Jewish law, nor a Poseket, a determiner of Jewish law.  I am a transgender rabbi, and I have studied and written extensively on these issues.

A recent article in the Israeli National News, https://bit.ly/2DF0tlf, tells of a transgender woman who was unable to provide her ex-wife with a Get, the Jewish writ of divorce.  The bias in this article was clear and unmistakable, with its only goal being to support the Rabbanut, the state-sponsored Rabbinic Courts in Israel.  This article contains many errors in its content, and it tells of the very wrong decision of the court.

It is true that this transgender woman could have chosen to grant her ex-wife the Get prior to beginning her transition. That would have made matters much simpler, of course. But there is no information provided as to why that was not done.  However, once she began her transition, she was no longer able to be considered male, and thus could not legally write and transmit a Get.  Therefore this court grievously erred in compelling her to do so.

The Tzitz Eliezer, Rabbi Eliezer Yehuda Waldenberg Z”L, ruled that once a transgender woman has had gender confirming surgery, she is, b’di’eved, after the fact, a woman. The man that existed previously does not exist any longer, and is considered to have vanished in the way that Elijah the Prophet did.  Other courts in Israel have ruled similarly.

Now, let us suppose, for a minute, hypothetically, that the court were correct that she is not halakhically a woman.  They do not accept her neo-vagina because it was created by human hands.  She has had a penectomy and orchiectomy. Thus in this case, halakhically she would have to be ruled a Saris Adam, someone who is born male, but had lost the ability to procreate. The status of a Saris is complicated. They have the status of male in some cases and female in other cases. While they CAN deliver a get, the court erred by ruling this woman a Zakhar, a male. She no longer had Zakhrut, a penis, so she cannot be a Zakhar!  For a more in depth look at this topic, please see Prof. Max Strassfeld's amazing book Trans Talmud, available at https://amzn.to/3OMI9Kk.

 

I have shown elsewhere, that one who hinders the gender transition of a transgender person is to be considered guilty of Shephikhat Damim, of spilling blood. See https://bit.ly/2S2Lq9U for this discussion. If this transgender woman comes to self-harm because of this court’s decision, the members of this court MUST be held accountable for this action.

The court certainly could have taken other actions. They could have declared the man to be non-extant the way a mariner lost at sea is, so that the wife is not in Aginut, the chained state that prevents her from being remarried. Or they could have chosen to annul the marriage as she requested.  But they elected instead to be mean spirited and vindictive instead, and act against established Halakha.

Now it is remotely possible if we split the hair of fleas, that the court were correct on a technical basis. But they violated the basic tenets of K'vod haBriut, respect for fellow people, and Ahavat Yisrael, love of fellow Jews. They clearly violated what Hillel saw as the primary mitzvah to love your neighbor as yourself.  In this light their decision was also completely wrong.

I call on the Israeli Supreme Court to act swiftly to right this grievous ruling before harm does come, and to censure these Dayanim for judicial misconduct.  I further call on Knesset, the Israeli Parliament, to act swiftly to pass laws to protect the rights of transgender Israelis in situations like these.

Revised 7/3/2022

Rabbah Rona Matlow MAJEd, MAJS, MEM © 2019