Volume 62 Number 72 
      Produced: Sat, 02 Apr 16 16:38:26 -0400

Subjects Discussed In This Issue:

Can a woman become a man and get an aliyah? 
    [Chana Luntz]
Halachically married without civil marriage (4)
    [Perry Dane  Yisrael Medad   Leah S. R. Gordon  Martin Stern]
Marital rape (was Concubinage relationship) 
    [Leah S. R. Gordon]


From: Chana Luntz <Chana@...>
Date: Fri, Apr 1,2016 at 08:01 AM
Subject: Can a woman become a man and get an aliyah?

Chaim Casper wrote (MJ 62#65):

> He goes as far to suggest that a woman who undergoes a sex change operation
> becomes halakhically a man as reflected in the external genitalia (and vice
> versa) and does not need a bill of divorce (i.e. a get) from her spouse
> because a man cannot be married to another man (Tzitz Eliezer Vol 10, 25).

Martin Stern (MJ 62#67) replied:

> I find it difficult to believe that he makes such a sweeping statement and
> presume that it is a consequence of Chaim's "apologies for not quoting R`
> Waldenberg directly as I couldn't locate the relevant teshuvot Online".
> There is a world of difference between surgery to remove ambiguous gender in
> neonates and plastic surgery to change someone's appearance from male to
> female, or vice versa, in those whose gender is clearly established. Such
> surgery would almost certainly be Biblically prohibited as castration, at
> least for male-to-female surgery.

A key focus for the Tzitz Eliezer's teshuva (chelek 10 siman 25, perek 26 letter
6) is a teshuva of Rav Yosef Falgi (in a sefer Yosef et Achiv).  The case was
that Reuven married what appeared to be a betula [virgin] like every other
Jewish woman, and he was with her as with a wife, but after a number of years
there occurred to her a "happening" that she changed from a female to a male in
every way.  And the question was, does Reuven have to give "her" a get?

Now remember that all of this occurred before we had the medical ability to
do plastic surgery, give hormones or any similar medical treatments, and
before there was likely to be any surgery in neonates. [I recall once watching a
television programme about a tribe where this was not such an uncommon situation
- while most of the girls in the tribe born girls, stayed girls, a group of such
girls used to appear as girls until puberty, and then turned into boys in all
respects - at which point they apparently switched without difficulty (according
to the programme) from doing the girls chores with the women to doing the boys
chores with the men.  If I recall the anthropologists on the television
programme believed that all these girls to boys shared a genetic inheritance -
i.e. they could be traced back to one individual with this characteristic, who
had passed it on to his (and you have to say his here) descendants.]

And Chaim Casper is right here - the position of the Tzitz Eliezer was that
Reuven did not need to give the person he married with chuppah and kiddushin,
and with whom he had lived as man and wife, but who had now changed into a man,
a get.  He bases this view on, inter alia, the position of the Trumat HaDeshen
that the wife of Eliyahu HaNavi did not need a get from him, once he changed
from man into angel.  (At various points it was also pointed out that the
language of the get just wouldn't work here - "you are permitted to all men" for
example would make no sense).

The portion that is slightly less clear from this teshuva is whether the Tziz
Eliezer would say the same thing about a woman who intentionally, using modern
medicine, effected what happened automatically in the case of Reuven's wife. 
However the implication at least is that he would.  The teshuva is, as stated
above, letter six in a much longer teshuva, and the much longer teshuva deals
with heart transplants, and the halachic implications of these.  And the lead in
to the discussion indicates that he is shifting from the interchanging of other
organs, such as hearts, to the interchanging of female organs to male organs and
the reverse.  He then brings some basic sources on the concept of tumtum and
androgynos, and  before the Reuven case, he brings some poskim who discuss
whether if a baby appears to be female at birth, but later produces male organs
(again we are talking about teshuvot from historic periods, where this had to be
spontaneous), that person needs a brit mila (there are views on both sides) but
the Tzitz Eliezer appears to favour the position that it is necessary.

The second teshuva cited by Chaim Casper (Tzitz Eliezer chelek 11 siman 78) is
the one relating to plastic (and other) surgery in neonates, as the Tzitz
Eliezer was asked by a doctor in the field.  In the particular case in question,
the child appeared completely female at birth (and hence was given a female
name), but for some reason they investigated more closely, and it was discovered
that she was (a) genetically XY (i.e. genetically male) and (b) inside her body
was some male tissue/male organ.  The question asked by the doctor was whether
in general it was permitted to make a baby, who was genetically male, female,
and whether in this case it was permitted to remove the male tissue/organs
inside so that this girl would not have problems with any male hormones such
organ might produce.

The Tzitz Eliezer replied affirmatively to both questions.  He held that in
cases of ambiguity it was better, if possible,  to make the child into what
would appear to be a full fledged male, rather than a female, but in this case,
it was permitted to remove the male organ and tissue and this permission
extended to all cases where it was difficult to make the child appear fully
male.  That is despite that you might be under various definitions of
androgynos, changing this child from one who was (according to many of the 
poskim) a safek [doubtful] male and safek female, to one who would be considered
vadai [certainly] male.

In this particular case the doctor asked a posek, but my understanding is that
modern hospitals do this routinely, and do not always ask.  Perhaps a geneticist
can chime in here, but my assumption is, from what we know of genetics, that
most of these cases would involve children who were genetically XY (maybe a few
XXY).  And that would presumably mean (again geneticists might be able to help
me here) that, despite certain halachic assumptions brought by the Tzitz Eliezer
that an androgynos is unable to have children, that is not in fact true  - that
they might well be able to do so as a male.  Does such an androgynous have eggs?
 Could she have a child as a female by way of a surrogate mother? Is it science
fiction for a womb to be created and for her to possibly carry her own child? 
These are medical questions to which I do not know the answers, but which might
have halachic relevance.

Is the Tzitz Eliezer right?  Should we be doing surgery on babies in order for
them to fit into one of the two categories of modern society, when halachically
there were traditionally four categories?

The argument that he is correct would seem to hinge on the fact that
psychologically, putting a child into the world as a form of freak would be an
enormous burden on them.  Which school would they go to? Which side of the
mechitza?  Which bathroom/changing room would they use and how could they
undress in them?  Most of the halachic sources would seem to suggest that such a
child should go on the male side (just in case), but can you imagine being in a
school of boys "just in case" you might be a boy (but where there is a real
halachic doubt that you might be a girl)?  How do you think your classmates
would treat you?  Whereas at least with surgery, in numbers of cases they would
presumably get it right and so numbers of these children could go on to lead
relatively normal lives, or at least have relatively normal childhoods.

But the corollary of that decision would seem to necessitate a certain tolerance
of those who are absolutely certain they are the wrong gender - because there is
a pretty reasonable chance that in fact they are, that incorrect decisions were
made at some previous point in their lives, that they are just correcting.  And
that does seem, by implication at least, where the Tzitz Eliezer was going.




From: Perry Dane <dane@...>
Date: Tue, Mar 22,2016 at 04:01 PM
Subject: Halachically married without civil marriage

Carl Singer wrote (MJ 62#71):

> May I thank Professor Dane (MJ 62#70) for his enlightening article and also
> interesting blog post.
> At my shallow depth -- my concern is people who are for all intents and
> purposes in a long term, monogamous  marital relationship but who present
> themselves to government authorities as being "single" in order to reap
> financial gain through various government subsidies.
> Perhaps this question is not really for Mail-Jewish -- but are such actions
> criminal. What is definitely relevant to the Mail-Jewish discussion -- are such
> action halachically permissible .... and what if anything should our
> "leadership" or society do about it? 

May I thank Carl for his kind words. 

I don't know the details of various benefit programs, and to what extent they
distinguish between cohabiting and formally married folks. I do know that the
rules vary from state to state. See


In any event, it might be punishable in some states to fail to disclose a
cohabitation relationship, regardless of whether the couple is married according
to halakhah. 

But let's assume that that's not a problem in a particular state. That still
leaves the possibility that a state would treat a religious marriage ceremony,
even without a civil license, as creating a civilly valid marriage. That is true
in some states but not others. And in a state in which such a rule is in place,
a failure to disclose that one is "married" -- with or without a
ceremony -- might (I emphasize "might"!) be construed as a form of welfare fraud. 

It also seems to me, though, that whatever state law has to say, there are
serious halakhic issues here. Whether or not dina d'malkuta dina formally
applies, the existence and implications of state civil marriage laws should not
just be ignored. Moreover, to the extent that a person is seeking welfare
benefits on what are, at least morally, false pretenses, I can easily imagine a
halakhic argument that this is a form of theft. Then there's the issue of marat

To be sure, when an oppressive government unjustly prevents Jews from marrying
civilly, or imposes unjust burdens on them if they do, the moral and halakhic
calculations will need to be different. But in the United States, I find the
notion of "social security marriage" and other attempts to circumvent the civil
law to be deeply troubling Jewishly, whether or not they are actually criminal. 

I hope this helps a bit.


From: Yisrael Medad  <yisrael.medad@...>
Date: Mon, Mar 28,2016 at 03:01 AM
Subject: Halachically married without civil marriage

Perets Mett (MJ 62#71) wrote:

> Two barmitsva boys are quite likely not of age by Torah law and would not
> qualify as witnesses to a marriage.

Just as an aside, there were more than a few Jewish men who were married before
their barmitzvah prior to the 19th century.

Yisrael Medad

From: Leah S. R. Gordon <leah@...>
Date: Mon, Mar 28,2016 at 09:01 AM
Subject: Halachically married without civil marriage

Frank Silbermann wrote (MJ 62#71):

> I suppose such a consequence would illustrate the reason a society needs a
> severe social stigma against single motherhood (other than for reasons over
> which the woman has no control, such as widowhood, divorce or abandonment by a
> husband).

I often agree with Mr. Silbermann, but I cannot allow this statement to stand. 
Why would it be appropriate to stigmatize the mother (and kal v'chomer her
child) for what is surely at least half the responsibility of the father?

How could any good come of a "severe social stigma" in any case?  I can only see
it leading to mistreatment of women and children.

And what about the case of a financially independent woman who chooses to
raise her own children (via donor sperm, adoption, etc.)?  Why should she suffer
any stigma whatsoever?

Leah S. R. Gordon

From: Martin Stern <md.stern@...>
Date: Tue, Mar 29,2016 at 05:01 AM
Subject: Halachically married without civil marriage

Carl A. Singer wrote (MJ 62#71):
> At my shallow depth -- my concern is people who are for all intents and
> purposes in a long term, monogamous  marital relationship but who present
> themselves to government authorities as being "single" in order to reap
> financial gain through various government subsidies.
> Perhaps this question is not really for Mail-Jewish -- but are such actions
> criminal. What is definitely relevant to the Mail-Jewish discussion -- are
> such action halachically permissible .... and what if anything should our
> "leadership" or society do about it?

Obviously such actions would only be criminal if they broke some law in the
country concerned. In the UK, as I wrote previously, cohabiting couples are
treated as if married when assessing the woman's application for benefits.
In countries where this is not done, there might be a moral problem.

Whether it would constitute genevat da'at [obtaining a benefit through
misleading the donor] would depend on whether claims from ladies in such
circumstances were routinely accepted by the authorities without objection
when they were aware of them.

Martin Stern


From: Leah S. R. Gordon <leah@...>
Date: Mon, Mar 28,2016 at 12:01 PM
Subject: Marital rape (was Concubinage relationship)

Russell Hendel wrote (MJ 62#66):

> Here is a further clarification. It is prohibited (at least rabbinically) for a
> man to have intimacy with his wife say while asleep. I would suggest the
> following: If an ordinary person has intimacy with a woman while she sleeps, 
> his act is rape which emanates from a prohibition of theft and has tort
> implications. If a man has intimacy with his wife while asleep, he has not 
> raped her (But he has violated a separate rabbinic prohibition against so
> doing).

I understand from this that Mr. Hendel is opposed to sex with one's spouse
while that spouse is sleeping.  That is certainly a relief.  However, it is
false to claim that, "if a man has intimacy with his wife while asleep, he has
not raped her" - I'm surprised even to read this statement.

According to the law of the land in the United States, as well as what I would
consider to be a reasonable person's opinion, a person who is asleep cannot
legally consent to sexual relations.  Hence, it is rape.  That is what "rape"
means - sexual use of a person without his/her consent.  Or "sexual assault" for
various other activities perhaps short of sexual intercourse.

Consent is now defined in many jurisdictions as NOT just the absence of
objection to sex (which in any case cannot be assumed, EVEN FROM A SPOUSE, if
the other person is unconscious), but rather "sustained enthusiastic
participatory consent".

Please don't make statements that make our people sound, l'havdil, like the
Daesh/ISIS/ISIL monsters who believe that women are property to be raped at
will.  Please also do not make statements that assume the readers of MJ are all
men and that women are "other" or even "objects" that can be acquired.

I thank G-d every day that I don't live in any kind of theocracy.

Leah S. R. Gordon


End of Volume 62 Issue 72