Beit Din Orders Woman To Give Gett
A
recent ruling by the Haifa beit din underscores the need for rabbinical
courts to reexamine the halachic status of transgender individuals with
deference to the individual’s new reality.
In the case before the beit din,
an individual who had undergone sexual reassignment surgery to become a
woman refused to give her divorcing wife a gett, claiming that she was
prohibited from doing so on the basis that a woman cannot give a gett.
The individual’s wife requested an annulment of the marriage because the
individual was no longer a man. The court denied the request,
asserting that despite the surgery, the individual was still
halachically a man. The court ordered the individual to give the gett,
to which she eventually agreed.
By the court’s
reasoning, a transgender man could not be barred from entering a
women’s mikvah, as he is still halachically a woman. A mesader
kiddushin would have no ostensible basis to refuse to officiate a
wedding between the same transgender man and another man, as the former
is still halachically a woman. And yet, imagine if either of these
scenarios actually materialized. The transgender man would be barred
from the women’s mikvah, and would also be barred from marrying another
man. The transgender man’s present and former gender would both be
denied.
U.S. courts
have uniformly recognized the new gender of an individual who has
undergone gender reassignment surgery since the issue first presented
itself over forty years ago. In M.T. v. J.T.,
140 N.J. Super. 77 (N.J. Super. Ct. App. Div. 1976), the Appellate
Division of the Superior Court of New Jersey addressed the claim of
M.T., an individual who was born a male and transitioned to a female,
that she was entitled to support and maintenance from her divorced
husband. Her husband claimed that he owed no support because their
marriage was void, as M.T. had been born male, and New Jersey at the
time prohibited same-sex marriages. The Appellate Division affirmed the
trial court’s holding that “[t]he entire area of transsexualism is
repugnant to the nature of many persons within our society. However,
this should not govern the legal acceptance of a fact.” In other words,
like it or not, transgender surgery changes an individual’s gender.
Awareness of,
and education regarding, transgender individuals must continue to
improve. Regardless, as the New Jersey court opined, personal judgments
should not factor into the halachic recognition of the individual’s
reassigned gender. Further, reality dictates that any halachic
impermissibility of gender reassignment surgery cannot render the new
gender void. To simply say that the surgery was halachically prohibited
and so the transgender individual is now not a transgender individual
leaves the individual without any recognized gender at all.
Dina Gielchinsky is a counter-terrorism lawyer living in Teaneck, New Jersey.