| Just Check a Box and Do Your Mitzvahs |
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| Written by Sarah "Snugget" Braunstein | |||||
| Thursday, 09 February 2006 | |||||
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The Wondering Jew  Q: In their writings on gender non-conforming Jews, were Talmudic rabbis seeking gender liberation? A: Though concerned about cross-dressing and biological anomalies, the rabbis merely regarded such category-defying individuals as problems whose halakhic (legal) obligations were hard to discern. But if we can identify the shortcomings of their conclusions, we can determine how to use such sources as a jumping off point for building inclusive communities today. In Hilchot Ishut 2:24 (The Laws of Humanity), Maimonides writes of two groups of people who fall outside the “normal” confines of gender. The androgynous is described as a person who has both male and female external organs, and the tumtum is a person who has a distinct sex organ that is “closed” or “covered with skin,” thus making it difficult to discern. In his paper, “Tumtum and Androgynous,” written nearly 800 years later, in 1999, Rabbi Alfred Cohen details the various halachot (laws) that are related to such genital ambiguities. He shows that as far as the rabbis were concerned, the existence of tumtum and androgynous did not signify the possibility for multiple sex and gender possibilities or the need to reinterpret Jewish law to accommodate for such individuals. For the rabbis, the most pressing dilemma that both types of people present is the perceived impossibility of knowing which gender-specific commandments they were obligated to perform. In cases where it was too hard to tell, the individual whose gender was in question would perform all the positive time-bound commandments required of men, like putting on teffilin (phylacteries) at particular times—but would do so without saying a blessing. Therefore, if they were “actually” men, they would be fulfilling their requirements, and if they were “actually” women, they would not be overstepping their limitations. The rabbis’ foundational belief that each person is of one of two sexes guided their decisions and set a precedent for later considerations of gender expression. But even though the necessity of the man/woman binary was not questioned, the rabbis did grapple with cross-dressing. In Sex Laws and Customs in Judaism, published in 1948, Louis M. Epstein examines the various interpretations of Deuteronomy 22:5, which reads, “A woman shall not wear that which pertains to a man, neither shall a man put on a woman’s garment; for all that do so are an abomination unto God.” Epstein reads the verse as “a prohibition against the practice of homosexuality…which is generally associated with wearing the garments of the opposite sex.” The other possibilities he presents include preventing men from escaping military duty by dressing like women, and making connections to “heathen” (read: non-Jewish) religious practice. What Epstein and most of the rabbis before and after him were missing is the body of contemporary feminist and queer scholarship that (a) distinguishes between sex and gender; the former widely accepted as physical assignment, and the latter as societal regulation of the former (b) recognizes transgender identity as more than just cross-dressing and (c) fights against the practices of surgical and hormonal “corrections” to children born with non-standard genitalia. These ideas have opened up room for more flexible gender expression across the board, and doing so within Jewish texts would save an untold number of people from oppressive restrictions on their gender expression. Even though the rabbis were not the gender-liberating radicals some of us would like them to have been, their scholarship does provide queer communities with canonical—though problematic—texts. The rabbinic conclusions, borne of seeking order and categorization, cannot responsibly be applied to our communities, just as our language should not be employed in understanding the world of the Talmudic rabbis. While we must recognize the fallacy of applying a post-modern understanding of gender to the age of the rabbis, we can also consider it part of our tradition to question and update Jewish law for our times. If we can use timers to have lights on Shabbat, and construct “fences” of wire and string to carry our cholent to Shabbos lunch, there must be a way to maintain the spirit of the halakha while creating the space that our communities need.
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