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Sex Reassignment Surgery and Deuteronomy 23:2 (23:1)

לא־יָבא פְצוּעַ־דַּכָּא וּכְרוּת שָׁפְכָה בִּקְהַל ה׳׃

No one whose testes are crushed or whose member is cut off shall be admitted into the congregation of the Lord.

Deuteronomy 23:2 (New JPS)

He that is wounded in the stones, or hath his privy member cut off, shall not enter into the congregation of the LORD.

Deuteronomy 23:1 (KJV)

While the theatrical slapstick kick in the groin evokes wild laughter in the unrefined audience, any serious discussion of the actual defect, reduction or removal of male sexual organs for any cause is prohibitively uncomfortable for many, including some physicians.

The Torah (Hebrew Bible) was given to humanity through the Jewish People to serve as a guide for the improvement and advancement of civilization, that is, to be implemented in the real world. For that reason, the Torah addresses certain real-life issues candidly. In most cases, the Torah does not seek to describe the ideal society, but rather to delineate a minimal level of development and decency toward which we are to strive. Thirty-five centuries later, humanity has attained or exceeded those minimums in only a few instances.

In order to faithfully implement the Torah ideals, a careful consideration of the text and a tracing of its legal application is required. Our verse, Deuteronomy 23:2 (numbered 23:1 in some versions), has been the subject of comment and basis for legal decisions by numerous sages over the generations, thus offering a rich treasure of analysis and experience to serve as guides for the future.

The verse is usually understood to be referring to a case of voluntary or accidental mutilation, and would not apply, according to most authorities, when the condition is due to birth defect or, according to some, due to disease. Maimonides (1135 – 1204) writes:

Every case of ineligibility referred to in this matter is when it did not occur as an act of Heaven such as when a person, dog or branch slashed him or the like. But if he was born with a severed member, crushed testes or without testes, or became ill and lost these organs, or was born with them leprous and they damaged or severed them, such a person is permitted to "enter into the congregation of the Lord" inasmuch as all of these occurred as an act of Heaven.

Mishnei Torah Hilkhot Issurei Bi’a 16:9 (see also Shulhan Arukh E.H. 5:10)

In the ancient Near East it was common for men to be sexually mutilated upon being killed in battle or captured, subjugated and enslaved by a foreign power (see Isaiah 56:3 ff). This is understood by Rashi (based on earlier midrash) to be one of the atrocities committed by the Amalekites in their attack on the Israelites as the latter sought safe passage in their journey (see Rashi (1040 — 1105) on Deut. 25:18 s.v. וַיְזַנֵּ֤ב , and Midrash Tanhuma on that verse quoting רב חיננא בר שיקלא, and Rashi on I Sam. 15:33). The Amalekites threw the severed members up in the air as a sign of contempt.

There were also men who were emasculated as part of a compulsory or voluntary initiation rite for non-Israelite cults. To some scholars, it is this latter group that is a primary concern of this verse. That is, the conditions described by our verse may be bodily evidence of the subject’s complete devotion to an idolatrous or otherwise immoral cult, just as the brit mila (rite of circumcision) is a physical sign of the Jewish male’s bonding with the God of Israel.

The Torah records sexual mutilation performed by Israelites on their enemies, but only after (or at) the enemies’ death in battle: "David went out with his men and killed two hundred Philistines; David brought their foreskins and they were counted out for the king, that he might become the king’s son-in-law. Saul then gave him his daughter Michal in marriage" (I Samuel 18:27, NJPS). Although the verse names only the foreskin, one might suppose that in the context of collecting their war trophies, David and his officers were not careful to take only the part specified. The Talmudic discussion suggests that the foreskins were of symbolic, but not monetary, value (B Sanh. 19b). Another Talmudic discussion suggests that Tamar reduced or removed Amnon’s sexual organ as revenge for his sexual attack on her (B Sanh. 21a).

Our verse has not been understood to have any bearing on the female body or organs (Magid Mishnei on Issurei Bi`a 16:11). Moreover, in halakha (Jewish jurisprudence) this law is understood to apply to Jews, but has no direct application to those not under the jurisdiction of Jewish law. That is to say, it is forbidden for a Jew to remove the sex organs of another Jew, of a non-Jew or even of an animal (outside of permitted medical procedures), but Jewish law does not prohibit a non-Jew from removing the sex organs at this non-Jew’s initiative. However, some authorities hold that a prohibition on auto-castration, or on genital mutilation of any animal, is one of the seven "Noahide" laws which apply to all humanity (see Mishnei LeMelekh by Rabbi Yehuda Rozanis, c. 1700, Turkey, on Rambam‘s Mishnei Torah Hilkhot Melakhim 9:6 at נחזור לענינינו).

Whether, or in what way, this particular law or the law in general is viewed by other groups as binding on themselves or on others is beyond the scope of comment by our sages. Nevertheless, some in other societies or traditions may view halakha as one point of reference for their own ethical decisions or legislation.

Beyond the practice of genital mutilation in conjunction with warfare in ancient times — still practiced in some parts of the world to this day — castration has been used very widely by other societies to manage slaves, prevent voice change, punish criminals, and deter or "treat" masterbation. It is in this larger context that the Torah introduces, and the rabbis expand and enforce, a broad and blanket prohibition or taboo against modifying male genitals, with only very specific and important exceptions, primary the requirement of brit mila (rite of circumcision). This taboo stands in radical contrast to the violence practiced by much of humanity. The message is simply "Keep your hands off" (see Deut. 25:11-12).

Discussions of this verse do not take into account the concern for potential violations of prohibitions against a variety of sexual acts that might be facilitated or encouraged by sex reassignment surgery, or even the possibility that such surgery might reduce the inclination or opportunity for such violation. Likewise, loss of use of these organs may preclude the fulfillment of the mitzva of procreation or that of providing sexual pleasure to one’s wife. Elective surgery, inasmuch as it entails risk to life, is discouraged in Jewish medical ethics. These concerns do not arise directly from the verse under consideration. It is important to understand that sex reassignment surgery has several halakhic implications, which are beyond the scope of this particular verse and this analysis, but which would have to be taken into account in a halakhic analysis of such surgery.

In case of a life-threatening malady such as cancer or infection, there is justification in halakha for the reduction or removal of any non-vital organ, if that is the required medical treatment. In early as well as recent case law, there is precedent for recognizing physical and emotional or psychological pain as a consideration in determining medical necessity. A case can be made that major surgical modifications may be made to a male’s genital organs were this necessary to avoid excessive suffering. Given the tendency of the modern rabbinate to hold a reactionary social outlook, it is not likely that most rabbinic courts would hear this argument sympathetically or apply it liberally to elective sex reassignment surgery. However, the well-qualified judge is guided in large part by the facts of a specific case and the medical knowledge of the day. Taking scientific and medical knowledge into account in considering a legal, therapeutic or ethical stand is difficult because in matters of gender and sex identity, to cite one contemporary expert, "we know that we really don’t know" (Julie Tilsen, Therapeutic Conversations with Queer Youth: Transcending Homonormativity and Constructing Preferred Identities, Jason Aronson, 2013).

A further consideration is the discretion allowed to the court in the case of someone with a persistent and intense specific desire (Heb. תַאֲוָה) for something that is generally not acceptable. There seems to be accomodation made in some instances for individuals who are in unusual circumstances or have unusual characteristics. Because gender identity and sexual proclivities are diverse and not well-understood, contemporary rabbis address the issue on a case-by-case basis and avoid broad rulings. This approach has enabled some individuals to undergo gender transformation with rabbinic approval but without a rabbinic endorsement of sex reassignment as a simple valid choice open for anyone.

On a philosophical level, one might argue that other less radical solutions to gender dysphoria must suffice, or that other avenues of healing must be pursued. Many people are unhappy with their bodies — too short, too fat, too tall, too ugly, the wrong complexion, and in this case, the wrong gender. At some point we have to be able to accept ourselves as God made us.

But the notion of accepting our lot in life does not mean that people cannot try to overcome physical and psychological pain or disabilities. Part of "accepting ourselves as God made us" may be treating the way God made our personalities or gender identities as essential qualities, and seeing biology as less essential and thus a variable. The sages historically have understood gender expression as a social construct, but did not envision the development of medical technology to make sex change possible.

As noted, some "elective" surgery is prohibited by Jewish law, particularly when it is life-threatening. Sex reassignment surgery has more implications than a "nose job," but many of the same considerations apply. At the same time, the value of elective surgery (body modification of any sort) in improving quality of life has been recognized, and may be permitted as long as it entails minimal risk. Very little literature exists on risk assessment or quantification in halakha.

The Biblical consequence for a Jew with the condition described in our verse of not being "admitted into the congregation of the Lord" means not being able to marry a Jewish woman (See Mishna Yevamot 9:1-2). Marriage to a woman who became Jewish by conversion or in some cases a mamzeret (the progeny of certain forbidden unions) would be permitted to a Jew with this condition. A Male-to-Female transsexual may not experience this limitation as a disability in any event. The subject may still be included in and can lead (yotsei others for) public performances such as birkat ha-mazon (grace after meals), hearing the shofar (ram’s horn on Rosh HaShana), and reading the megilla (Book of Esther).

While modern society is most often preoccupied with male/female gender distinctions, halakha recognizes at least four common genders. Simply changing or removing a person’s genital organs does not necessarily change their legal gender status. Because social gender identity is a source of great emotional and economic concern in our day, rabbinic authorities use considerable discretion (in both senses of the word) in deciding an individual case. Removal of the male sexual organs does not necessarily mean creation of either female sexual organs or a female social identity. The desire of a male to become a female seems to be more understandable and socially accepted than the desire of a male to become genderless, but there is no apparent reason this should be so from the point of view of law or historic rabbinic values.

Remarkably, the language of this verse itself does not prohibit crushing testes or cutting the member. It merely describes the legal debilities suffered by one with these conditions. But as a general rule of law, it is prohibited to put oneself or another in the position of legal debility. Specifically, removing the male sex organs from any human or animal is generally prohibited.

The punishment provided under Biblical law for a Jew who performs such surgery is lashing. Technically one could avoid this Biblical prohibition by using non-mechanical (i.e. chemical) methods, as these would not constitute "crushing" or "cutting." But this would still be viewed as "worthy of punishment by lashing" as a violation of the general rule against circumventing law (Maimonides, Mishnei Torah, Hilhot Issurei Bi’a 16:12). One who forcibly performs such crushing or cutting on another could also be liable for other general criminal violations such as assault or attempted murder, and could be subject to tort action under halakha. Indeed, such liability may exist even if the subject voluntarily undergoes such organ removal.


See also: “Cross Dressing and Deuteronomy 22:5.”

This discussion is meant to be informational only, not determinative of Jewish law for this verse or for the issue of surgical removal or modification of male sex organs generally. Persons of the Jewish faith should abide by the legal interpretation of the verse as it is understood by their local community as explained by their rabbi. This discussion does not make any claim for the permissibility of or restriction against any surgical body modification based on other Biblical and post-Biblical (Rabbinic) legislation.

If you would like to learn more of what the Torah teaches on this and other subjects, go and study.

©Jon-Jay Tilsen revised 2014

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