Transgender People in Halakha: B. A Critical Reading of Rabbi Katz’s Article (Column 702)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I presented a conceptual analysis and first-order psak (halakhic decision-making) on questions relating to the halakhic status of trans people. At the start of that column I noted that what brought me to this discussion was an article by Rabbi Ysoscher Katz that addresses these halakhic questions. Having sketched my own position and, at the end, briefly summarized the halakhic conclusions that follow from it, I now wish to turn to a critical reading of Rabbi Katz’s article. I will rely here on the conceptual analysis I developed in the previous column, which is why I prefaced with it. As I noted there, Rabbi Katz’s discussion somewhat challenges the distinction between first-order and second-order pesak, and precisely for that reason it interests me. I will ignore his introductions regarding the importance of the topic and the appropriate attitude toward LGBTQ individuals, with which I fully agree. My concern here is only with his halakhic discussion. The article is very long, so I will not bring quotations but will critically survey his main points.

The duty to be lenient

Rabbi Katz opens his article by charting a direction that is not exactly a halakhic argument, yet I think it merits comment. He cites the Maharsha (Yevamot 122b) on leniencies in the laws of testimony to permit an agunah (a “chained” woman). First and foremost among them is the allowance of one witness in testimony regarding a woman (to release an agunah), though there are other leniencies. The Maharsha writes that this is not uprooting (of the law) but is due to the attribute of peace, so that the woman not remain chained. Rabbi Katz adds that this principle applies not only to married couples but to pairing for any couple that desires it. He then adds that the same applies to same-sex couples, for they too need to live in partnership.

His assumption is that the leniencies are due to distress. It may be that the leniencies stem from a halakhic value of partnership and procreation. It is not clear that distress as such suffices to justify such leniencies. Mamzerim (illegitimate offspring in halakhic terms) also suffer distress, yet no one allows themselves to deviate from the law on that account. Beyond that, the Maharsha discusses the Tosafists there who rule to waive the requirements of interrogation and cross-examination (derishah ve-chakirah) in testimony for women, not the very allowance of one witness for a woman’s testimony—which is in fact a blatant departure from the law. Still, this conclusion strikes me as far-reaching, for two reasons: (1) The Sages who waived interrogation and cross-examination and allowed the possibility of permitting an agunah based on one witness did not merely prefer among existing options; they enacted a takkanah (rabbinic ordinance) that departs from the law’s bounds. They uprooted a matter from the Torah (and one can discuss whether this is passive vs. active uprooting). Such authority rests only with the Sanhedrin or some central halakhic authority. A contemporary posek cannot uproot a Torah law unless relying on an interpretation of a ground enacted in the Talmud or by the Sanhedrin. (2) Leniency in law is not a basis for abolishing a clear halakha. By a similar argument one could conclude that we must abolish the laws of mamzerut, since the status of a mamzer prevents innocent people from marrying, just as with LGBTQ folks.

One can understand his words as directed only at the “spirit of the matter.” That is, he too agrees we cannot uproot a Torah law on such grounds; his intent was merely to say that if, in our case, there are several acceptable halakhic possibilities, there is an obligation to choose the lenient one (in column 478 I explained that this is the difference between midrashic conservatism and reformism). There is indeed novelty here, for according to this, in such a case we need not follow the standard rules of doubt; rather, it is fitting—and perhaps obligatory—to choose the lenient path (see in the previous column my comment about being lenient in pressing circumstances instead of following the laws of doubt). If this is indeed his intention, I am prepared to accept the claim; but to apply it in practice he must show that there is a plausible halakhic path that enables leniency, and only then can he argue that in such a discussion it is possible and proper to choose it.

Formulating the question

Rabbi Katz frames the question addressed in his article as follows (end of p. 3):

I will attempt to clarify whether halakhic gender is indeed flexible and changeable, or whether a person’s gender is determined at birth with no possibility of change. Is the gender we are born with fixed and enduring forever, whether the body is the same body into which we were born or whether it has changed beyond recognition?

For him, this is a discussion about whether a person can change gender. But as we saw in the previous column, this is not the correct way to pose the question. My claim there was that a person’s gender (in the halakhic sense) is fixed since birth, because gender is not tied to a person’s sex but to their mental feelings. Therefore this is not about changing gender but, at most, about changing sex. The relevant question is the one discussed in my previous column: is there an independent halakhic status of “gender” that is not dependent on sex, or not?

To sharpen this: I argue that the question exists even if the trans person did not undergo sex-reassignment surgery, because their gender differs from their sex even before the surgery. Assuming there are halakhic ramifications that depend on gender, that is present from birth and does not change if one undergoes surgery or takes hormones. For me, if we already resort to discussing what surgery or hormones do, the relevant question is the reverse: did the sex indeed change, or does it remain determined by genetics (XX or XY), since genetics itself cannot be altered by surgery. Gender, however, is not affected by such bodily changes.

Note that in his very formulation, Rabbi Katz already assumes a rather far-reaching premise (following the Sages): that gender and sex are identical. He discusses whether surgery can change sex and, by extension, gender. In the previous column I explained that I dispute that premise itself, and I think there is a misunderstanding of the issue here. On my view, the whole discussion begins with the possibility that certain laws depend on gender and not on sex, and that these two are not necessarily dependent on one another.

Rabbi Katz is of course not obliged to accept my conceptual analysis. He in fact does not conduct any conceptual analysis, and this is my main criticism of him. Consequently, his discussion is very limited: he clings to the Sages’ conception that ties gender to sex and is unwilling to deviate from it. What remains for him is only to clarify what the Sages truly held. Indeed, we will see that this is the method he adopts in most of his article, and my claim against him is that something essential is missing. He almost ignores the possibility that sex and gender are not dependent, and therefore treats the Talmud as determinative (the only question being what the Talmud intended). The possibility of separating this dependence appears only in passing and is not clearly discussed. Moreover, he treats the Rishonim and contemporary Acharonim as binding sources (second-order psak). According to my proposal, the root of the discussion lies in the Talmudic paradigm that identifies sex with gender—a paradigm to which all these authorities feel bound. As noted, performing surgery does not change anything in such a discussion.

Sex-reassignment surgery

Rabbi Katz begins with a unique source that addresses sex-reassignment surgery. Again, his goal is to examine the significance of surgery for gender—even though, by his own definition, the discussion is whether one can change gender. He cites statements of the Ra’ah (or RaCh?) who discussed such surgery. It begins with the verse “You shall not lie with a male as the lyings of a woman; it is an abomination,” and the question of how one can lie with a male “as the lyings of a woman.” The Talmud (Sanhedrin 54) interprets this as anal intercourse, and this is the accepted explanation. But this Rishon claims it refers to a man who underwent surgery and created for himself an opening like a woman’s. In note 6, Rabbi Katz cites Acharonim who sought to prove from this that a change of sex does not change gender. I will comment on this in light of my previous column.

First, as I explained, none of this relates to gender at all, only to sex. But I doubt we can even infer from here about changing sex, since we are speaking of creating an opening like a woman’s, not turning a male into a female. The technology for a significant change of sex (even setting genetics aside—hormones, etc.) certainly did not exist then even in imagination. Even to speak of surgery is likely science fiction—a hypothetical case raised only for the sake of deriving a practical implication, not an option envisioned in practice. Above all, the fact that this Rishon raises the possibility of sex-change surgery does not constitute a halakhic precedent, for several reasons. He is a Rishon and not a formal authority. Beyond that, he also interprets the verse against the Talmud, so to treat his words as precedent is very strange even for a second-order posek. To the contrary, the fact that the Talmud did not interpret it that way could be read to mean it did not accept the assumption that one can change a person’s sex. Finally, as I explained in the previous column, the Rishon—and even the Talmud—formed their views in a world where knowledge was very partial and in many respects incorrect. Therefore, even if a precedent could be established, it is hard to accept it as binding.

Androgynos and tumtum

He brings this discussion in the context of androgynos and tumtum. Again, Rabbi Katz mixes sex and gender, and since the Sages deliberated about the status of the androgynos, he proceeds to discuss gender mixtures. But the Sages dealt with mixtures of sex, not gender (they assumed, as noted, that gender necessarily follows sex—an assumption we need not accept today, as I explained).

Indeed, on p. 6, Rabbi Katz finally lays on the table the Talmudic premise that sex determines gender. That can certainly be learned from the discussions of androgynos and tumtum, but as I explained, that very assumption must itself be examined as to whether it binds us today. And in fact, androgynos and tumtum challenge the premise that sex determines gender. Yet even that is not necessary, for if, regarding sex, we are willing to remain in doubt (or to say one is both, or neither, or doubtful—like twilight between day and night), there is no reason not to remain similarly doubtful regarding gender. Thus the Talmudic assumption of a necessary link between sex and gender can remain in place even in light of these sugyot.

At the end of the section on androgynos he sets two questions for discussion:

• Are the sex organs that determine gender only the natal organs (even if they were changed by surgery or hormonally), or is it possible to change sex and therefore gender as well?

This is the standard question that has accompanied us so far, and I have already explained why it is not the focus.

• The question of whether physical indicators are a sign or a cause. That is, even if one assumes that sex characteristics determine gender, is gender identical with sex (i.e., sex is the cause of gender) or is sex merely a sign of gender? Such “chakirot” (analytic distinctions) are very common in halakhic thinking.

This is already a more interesting and relevant question, for he explains that if sex is only a sign of gender, then there could be indications that tell us, in a given case, that the sign does not indicate the signified—that despite a person’s genetic sex being XX, their gender is male, or vice versa. The question then becomes: what signs suffice to displace sex as the indicator of gender? What must we observe in a person to conclude that their gender differs from their sex (i.e., that they have gender dysphoria—not in the psychiatric sense, since they need not suffer from it). This formulation approaches my formulation in the previous column, for it raises the possibility that gender is not sex, and that there is only a non-necessary correlation between them.

He first raises the possibility that the contrary signs would be physical (like hormones), but then moves to psychological signs. If a person’s sex is male and they feel like a woman, can that determine their gender to be female? As we will see, this possibility appears but does not receive real discussion, though it is the main question in this area.

Rabbi Katz summarizes that there are three states we can consider: a person who underwent a complete sex change (hormones and alteration of sex organs), a person who underwent hormonal change without surgery, and a person who did not undergo any physical change but psychologically feels they belong to the other gender.

He then moves to discuss the halakhic implications: (1) social norms (where to sit in the synagogue); (2) obligations in commandments from which women are exempt (time-bound positive commandments), inclusion in a minyan, “male attire,” etc.; (3) forbidden relations, kiddushin, yichud, and intercourse.

At this stage it appears he is coming to the very formulation I proposed in the previous column (though, in my view, after a conceptual analysis—which he lacks—the matters would be far clearer and sharper). Still, it is not identical to my discussion, because from his words it seems the first two types are not dependent on gendered feeling. If, hypothetically, a person had surgery or took hormones without having a different gendered sense, he would still maintain that their gender changes. I do not agree at all. Only for the third type—psychological change—does he raise the possibility that it is not conditioned on physical change. That does not follow from my analysis, which draws a sharp distinction between sex and gender: a change of sex with no gender significance does not change gender. At the end I will return to the differences between my approach and his.

In any case, we must now see how he conducts the discussion—i.e., how he formulates answers to these questions. And again we will see the problems that arise from the lack of conceptual analysis (for example, regarding the status of precedents and what, if anything, one should seek in them).

Discussion of Question A: Is sex determined by original nature or by present organs?

Regarding Question A—which, as noted, is not the truly important question—whether the sex organs that determine gender are the natal ones or not necessarily, Rabbi Katz brings (pp. 10–11) a dispute among contemporary poskim. As I said, to me this is of little significance so long as no evidence is brought from authoritative sources. Contemporary poskim can express their opinion just as I express mine. That does not resolve the question. Their proofs are very shaky, as Rabbi Katz himself notes (and therefore he concludes that their words are founded on mere social assumptions—see p. 13 near n. 29), but I won’t go into detail here because, as explained, this is not the crucial question.

Among other things, he discusses whether a person who underwent surgery has thereby removed from themselves certain halakhic obligations, which itself could be a prohibition. This reminds me of a comment that appeared in the talkbacks to my previous column, according to which such surgery is prohibited by “Lo Yilbash” (the ban on cross-dressing): if it is forbidden to don the clothing of the other gender, all the more so it is forbidden to transform one’s body to the other gender. But both claims rest on an incorrect assumption. The first assumes that the person is a man who has removed from himself obligation in time-bound positive commandments. But if their gender is female and the surgery merely aligns sex to gender, nothing has changed; they remain obligated (or exempt) accordingly. The second suffers from the opposite flaw: if that person is female essentially, then making their body female does not constitute “a man’s implement on a woman,” since she was a woman from the outset.

In his notes there he dialectically probes whether, upon becoming a woman, it is called “removing an obligation,” or whether the past has “died” and now she is a woman who is not obligated in those mitzvot. It seems he adopts the flawed assumptions underlying those comments, as we also saw above. I note that he makes a correct observation about those poskim: from their words it follows that if they argue it is forbidden because one removes obligations, then they assume that the surgery does indeed change gender (otherwise nothing was removed). Yet there remains a clear identification between sex and gender, and the entire dispute is only about changing sex.

Rabbi Katz proposes (pp. 13–33) to resolve this question from the discussion of the status of a transplanted organ—artificial (like a cochlear implant) or natural (like a corneal transplant). His claim is that, according to poskim who treat such an organ as part of the body, one might say that sex organs implanted in a person in sex-reassignment surgery now define the person’s present body, and thus such surgery effects a change of gender (in truth: sex—again, he assumes identity).

Discussion of Question B: Is sex a sign or a cause of gender?

Up to this point Rabbi Katz, like all the poskim he cites, assumed that sex determines gender—that there is identity between them. From p. 34 he begins to discuss that assumption itself: is sex a sign or a cause? If it is only a sign, then in principle we can separate it from gender when there are good reasons to do so (above he listed three types of reasons: surgery, hormonal change, or psychological/gendered feeling). I noted above that at least in the third case he is getting quite close to my formulation in the previous column.

His first claim is from sevara (reason): it is not plausible that something as fundamental as a person’s gender identity would be determined by sex organs alone. Much more plausible is that sex is a sign and not a cause (and we use sex as a sign because it is easy and clear to assess), while gender is something else. I fully agree with this on the basis of reason, as I wrote previously. On p. 36 he begins bringing proofs from Acharonim that gender identity is not determined by sex as a cause but as a sign. Here too I must note that statements of Acharonim do not play a significant role in determining halakha—especially on a topic like this where their knowledge and awareness were very limited. I will qualify that because they lacked the awareness we have today, if even they held that gender is not determined by sex, one can argue all the more so in our day. So their words have some weight as supportive considerations.

His first proofs deal with androgynos. The discussion begins with the Magen Avraham (Orach Chayim 529:2) who wrote that the status of an androgynos changes at times from male to female. Acharonim debate what causes the change, but one sees that gender is not fixed. Yet for our purposes this is hardly decisive for two reasons: first, the entire discussion still relies completely on sex signs, except that this person’s signs are mixed. There is no statement here that one can detach sex from gender. An androgynos is a person whose gender is mixed between male and female, and the question is which force prevails and when—the force of maleness or femaleness. Our question, however, concerns a person whose sex is not mixed, yet whose gendered feelings differ from their sex.

He even brings a source for this discussion among the Rishonim (p. 37), in Tashbetz, Magen Avot, vol. 3 ch. 4, who explicitly writes that this is a case of doubt, and the contending forces only determine how to treat that doubt. That is, we cannot see in these poskim a proof for severing sex from gender. Even his more modest phrasing (pp. 37–38) that from these poskim it follows that sex is a sign and not a cause for gender is not necessarily correct. Sex could well be the cause of gender even on their view, but when there are mixed causes—“zeh ve-zeh gorem” (“this and that both cause”)—one must resort to other considerations to resolve the doubt.

From p. 40 onward he brings objections by poskim who claim that only reproductive organs determine status, not other physical signs. Their claim is that physiological change does not alter a person’s gender status. But there is no discussion there of contrary mental signs. I too can accept that if one proceeds by reproductive organs (because there is no such thing as a different gendered mentality—no gender dysphoria), then physiological change does not alter it. The important question for me is whether gender depends on sex at all, or whether it pertains to the mental plane alone.

For example, on p. 44 he brings a responsum by Rabbi Yaakov Ariel regarding the gendered status of a person who has female reproductive organs but male (XY) chromosomes, or vice versa. Rabbi Ariel’s claim is that reproductive organs determine, and his proof is from an aylonit who is born a woman and has female organs, but later develops male signs and cannot conceive. The Gemara rules categorically that she is a woman. Again, note that this is a clash between two physical signs, and there is no discussion here of the relation between the mental domain and sex.

I will merely note what I already observed: in such issues, Talmudic proofs are shaky. The Talmud had no concept of genetics, so one cannot derive from it the status of genetics versus reproductive organs. Rabbi Ariel adds that halakha follows what is visible to the eye rather than hidden reality, and thereby explains the conclusion that genetics does not determine. He brings many proofs (which themselves require discussion). Here is a stronger claim, pointing to a general halakhic direction; it need not depend on the Talmud’s awareness of genetics.

But as noted, I too can agree that if the discussion is exclusively physiological, one may follow what is visible and not genetics. My claim from the previous column is that gender does not pertain to the physical plane at all—perhaps sex is a sign of gender, but not its cause. Therefore, a person who feels male and has no reason to be seen as female should not have their sex organs ignored because of their genetics. Hence I will not address the lengthy discussion of Rabbi Katz with Rabbi Ariel (pp. 44–49). This is a side issue not crucial to our topic.

Subsequently (pp. 49–53) he discusses the prohibition of destroying the beard. Rabbi Ariel proves from there that gender is determined by reproductive organs, and Rabbi Katz disputes him. Again, the discussion concerns physical signs and ignores the mental plane. Moreover, who says the beard prohibition is determined by gender? As I noted at the end of the previous column, some laws may be determined by sex, some by sexual orientation, and some by gender. For example, the prohibition of castration likely follows sex and reproductive capacity, not gender. It is therefore unclear whether the beard issue pertains to our topic at all.

From p. 53 he addresses whether partial change of signs suffices to change gender. For our purposes this is not the key question, since gender is determined by the mental plane. I therefore skip this discussion. The only question relevant here is the possibility of considering the mental plane against the physical.

The mental versus the physiological

Rabbi Katz reaches this question on p. 57, but you will not find any real discussion there. He takes his conclusion from earlier sections—that sex is a sign and not a cause (as with the androgynos, where male and female forces contend and the question is which prevails)—and asks what that “force” is. He suggests that perhaps it is the mental dimension (gendered feeling). This is his core, principled argument.

But as we saw, the sugyot and the proofs from Rishonim and Acharonim say something quite different. On their view, everything follows sex signs; the discussion arises only where the sex signs are mixed (androgynos). There, male and female forces struggle, and there is doubt which prevails and when. The “force” in question there is not mental but physical—akin to “zeh ve-zeh gorem.” Therefore, nothing can be concluded from there about a case of gender dysphoria, and certainly not that the force of maleness or femaleness is mental. Absolutely not.

Back to the difference between his approach and mine

One might argue that I am not doing anything essentially different: I too brought no proofs and even denied the force of proofs were there any (there aren’t). True—but I laid my cards on the table and said that I am arguing from sevara (reason), and that this suffices, and I explained why. Rabbi Katz attempts to conduct a halakhic discussion from sources, and there he fails. The sources do not lead to the conclusion he seeks, and even were they to do so, in my view they would be irrelevant, as I explained previously. I too agree that sex signs are a sign and not a cause for gender, but I say this from reason, not by proving it from the Talmud. I also do not accept Talmudic “proofs” on this point, even if there were any. And certainly the analytic distinction between “sign” and “cause” that he himself brings does not deal with the mental versus the physiological, but with two physiological planes. To a great extent all his proofs are counter-proofs, for they assume—on both sides of the distinction—that physiology is determinative; the only question is which physiological factor (genetics, organs, hormones, or other hidden forces).

For Rabbi Katz, the default is that sex determines; other evidence merely dislodges that. And so he concludes on p. 57:

In my humble opinion, for those poskim, it is clear that even in such cases other signs can override the sign of the sex organ—provided that the contrary sign is indeed clear and certain. That is, that it is clear to us that the contradicting sign truly contradicts the sex organ, that the person truly and justifiably belongs to a different gender than that of the sex organ.

But I think that the bar here is very high and also quite vague: what exactly are the boundaries of the required “clarity,” and what are the tools for determining that the person before us “truly and justifiably” feels like a gender other than that of their sex organ? These are boundaries that halakha must delineate and establish firmly.

By contrast, in my view sex does not determine at all but merely serves as an indicator. It is correlation, not essence. This is a weaker claim than saying sex is a sign and not a cause. I claim it is not even a sign in an essential sense. On my approach, contrary gendered feelings are not extracting us from what sex indicates, but showing that sex is irrelevant in this case. Therefore, on my view, we do not need unequivocal feelings to uproot anything; even if there is only doubt about the feelings, it is not clear that I would follow physical signs, for it is quite clear that in such a case they are not the measure. I am saying that in such a situation there is a doubt about gender. This is a significant difference from Rabbi Katz’s seemingly similar approach.

An example: a husband throws a get to his wife, and the get falls doubtfully closer to him (in which case she is not divorced) and doubtfully closer to her (in which case she is divorced). By default we might follow the prior presumption and say she remains married. The question whether the get has dislodged the presumption should be answered by the rule that doubt does not remove certainty, and so we establish her as married. But some explain that in such a case (at least where the get fell in a place that is truly no closer to one than the other—see Rashi, Yevamot) the presumption of marriage is irrelevant, for the presumption was undermined by the throwing of the get. That is, it is certain that a get was given; the only question is whether it took effect. The presumption of “married woman” is relevant only if the question were whether any act of divorce occurred. But if it is certain that a get was given and the doubt is only whether it was effective, the presumption does not speak to that doubt. Therefore we rule she is “doubtfully divorced.” Something like that is what I wish to argue here. If my doubt is over the person’s gender, and there are considerations on both sides, the presumption set by sex signs is irrelevant. The mental dimension does not “uproot” what sex determines; rather, when it is clear that the mental speaks, sex falls silent, for only the mental determines gender. My claim is that we follow physical signs only when the mental raises no doubts of its own.

Granted, the Talmud’s law of androgynos suggests that physical signs do determine gender (otherwise we would ask the androgynos how they feel), but as I explained, the Talmud was unaware of gender dysphoria and of the fact that sex need not determine. Therefore, Talmudic proofs have very limited significance in such issues.

I think this is why Rabbi Katz reaches no clear conclusion: on his view, the reasoning that ties gender to the mental comes to uproot the assumption that it depends on sex. Hence he is unsure whether there is sufficient certainty to uproot what sex indicates. But on my view, simple reason holds that the mental, not sex, determines gender, and therefore I do not enter those doubts. For me, the conceptual analysis that precedes the halakhic discussion is decisive. In Rabbi Katz’s treatment no such analysis is conducted; the possibility that the mental dislodges the physiological appears as an option within the halakhic discussion itself and, in my opinion, therefore does not receive full understanding of its significance or sufficient weight in halakhic resolution.

Bottom line: as I noted, Rabbi Katz’s article somewhat challenges the distinction between first-order and second-order pesak. Basically, he employs a second-order method, relying on sources (often contemporary poskim). But I think the interpretations, analogies, and extensions he applies to the sources—and the refutations he uses to dismiss the poskim’s views—indeed point to thinking that is, to a considerable degree, first-order. Conceptual analysis, however, is absent, even though some of its components appear within his discussion; and I have already noted that the main problems I found in his treatment stem from this lack.