This teshuvah* presupposes that there are those who identify as transgender who will undergo social and medical transition. With this chazakah* in place, this article asks how, bediavad*, one could manage the obligations of bris milah* with a person assigned female at birth, who has socially and medically transitioned. Some are exploring more radical interpretations of bris; however, in this teshuvah, bris refers exclusively to the traditional ceremony enacted through milah.
Traditional anatomical language has been used (except where explicitly stated) to describe ‘male’ and ‘female’ anatomy, per what most readers (especially those unfamiliar with trans writing) will easily understand. Using language in this way is also in keeping with the overarching halachic* principles I utilise, presenting halachic sex transition as a definitive, multi-step process. However, it is worth noting that within the transgender community, there is a much broader scope of language used by individuals to refer to what here is called a ‘clitoris’, ‘clitoral hood’, ‘vagina’, ‘penis’, etc. The terms used here should not be presumed to be the default terms used by every trans person. Reader discretion is advised.
The use of terms like ‘halachic foreskin’ and ‘halachic male’ are to establish halachic boundaries of Jewish obligation only (specifically around bris/ hatafat dam brit*), not to indicate a person’s sex or gender identity, or to override their own language choices. One should follow language outside this context according to an individual’s custom, per ahavas Yisrael: the commandment to love and respect every fellow Jew.
GLOSSARY OF TRANS TERMINOLOGY (AS USED IN THIS TESHUVAH)
AFAB: Assigned Female at Birth; someone legally labelled female at time of birth.
Cis/ Cisgender: Someone whose gender is in accordance with the sex they were assigned at birth (e.g. someone born male who later identifies as a man).
Gender: Someone’s internal conception, social identity, and cultural role as a man, woman, or non-binary person. This is often presumed to be in line with a person’s sex.
Gender expression: How masculine/ feminine/androgynos someone acts, dresses, and/or socialises.
Gender identity: Someone’s understanding of themselves as a man, woman, or nonbinary person.
Hormones/ Hormone Therapy: Use of testosterone in those AFAB to initiate male puberty or estrogen in those assigned male at birth to initiate female puberty.
Intersex: Someone born with genitals neither definitively male nor female and/or whose pubertal development is outside the norms of their assigned sex. Masculine: Anything (activity, dress style, personality trait, colour, etc.) perceived as being typically associated with being male/ manly.
Sex: A person’s biological identity, usually based on genital appearance at birth and confirmed through pubertal development and/ or later medical transition, traditionally: male, female, or intersex.
Sex Reassignment/ Affirmation Surgery: Surgery(ies) undertaken to change a body’s sex, creating a more male or female appearance of the genitals, chest, face, or other body parts.
Transgender man/ trans man: A person assigned female or intersex at birth who identifies as a man.
Transmasculine person: Someone assigned female or intersex at birth who identifies as non-binary, on the masculine side of gender expression.
The purpose of this teshuvah is two-fold. It is, on the surface, investigating the after-the-fact obligations in circumcision for trans men and trans masculine people. However, it also fundamentally assesses how to approach transgender men and transmasculine people within the halachic system. The necessity for this teshuvah is based on acknowledging that Jews who are transitioning or have transitioned are now a reality of our Jewish world, which must be addressed through and by halachah. I highly recommend reviewing Appendix A: a brief, informative summary of currently available genital gender affirmation surgery options, before reading the rest of this paper.
As things stand, it is almost impossible for transgender Jews to authentically live their lives within the halachic system due to a lack of halachic consideration for transgender bodies and because the majority of halachah about trans individuals revolves around forbidding their transitions l’chatchilah*.
However, I believe it is a religious imperative to build a halachic framework for trans Jews after their transitions, regardless of any accepted ruling about transitioning l’chatchilah. Otherwise, Jews wishing to observe mitzvot* relevant to their bodies are left without the guidance or ability to do so. In my opinion, withholding such a route to mitzvot is a chillul HaShem*. Therefore, I wish to demonstrate a path for trans Jews who have already transitioned, leaving transition l’chatchilah outside the scope of this teshuvah. I hope that this framework may prove fertile in other areas of trans halachah.
This teshuvah begins by asking whether it is males (i.e. those with penises) or men (those who identify as and/or live as men) who are obligated in bris milah according to the traditional interpretations of Torah, Talmud, and later halachic works.
Next, it strives to understand who is or can be considered a male and/or a man and which characteristics determine halachic sex according to these texts.
I then examine if medical transition and/or surgery changes halachic sex, focusing on the genotype vs phenotype definitions of sex. This discussion leads to an exploration of what halachically constitutes a penis or a foreskin and how secondary sex characteristics determine halachic sex.
These understandings then lead into a discussion of the halachic sex categories outside of zakhar and n’kevah, arriving at the understanding that someone who is zakhar has exclusively male sexual characteristics and someone n’kevah has exclusively female sexual characteristics. Further, I assert that anyone with a combination of male and female secondary sex characteristics ought to be halachically classified as androgynos and subsequently explore the halachic obligations of an androgynos person in bris and hatafat dam brit.
Finally, I offer a framework for understanding if and how genital affirmation surgery changes one’s status from androgynos to zakhar, and if so, whether genital affirmation surgery creates a foreskin that would obligate an individual in bris or hatafat dam brit.
The conclusion of this teshuvah contains the final psak* and ethical considerations in applying the ruling. I have also included a table demonstrating how this suggested halachic framework might be understood if applied.
* Psak/ psakim: Jewish legal ruling(s).
PART I: IS A TRANSGENDER MAN OR TRANSMASCULINE PERSON WITHOUT GENDER-AFFIRMING GENITAL SURGERY OBLIGATED IN BRIS MILAH?
Who is obligated in bris milah?
זאת בריתי אשר תשמרו ביני וביניכם ובין זרעך אחריך המול לכם כל־זכר ו
This is my covenant, which is kept between me and you and your descendants after you; you will circumcise for yourselves every zakhar/ male.
According to the pshat of the text, zakharim– males (which I understand as penis-havers, as opposed to those who identify as men) are obligated. It is not immediately clear if this commandment applies only to males born with a penis and foreskin or also to male genitalia created via surgery.
This first part of my teshuvah will grapple with the obligations of trans men and transmasculine people who have not (yet) undergone genital gender affirmation surgery, with part two addressing the surgical creation of a penis and any halachic implications therein.
I once heard that the purpose of bris milah is to sanctify the organ that contributes to procreation because, in Torah, the rite is associated with fertility. Looking at bris through this lens, it would follow that there is never any obligation on genitals which cannot ejaculate in this particular sign of the covenant. But this is not a traditionally accepted reason for bris, and most legal texts do not make mention of this interpretation.
Instead, let us investigate the understandings of this Bereshit verse by our Talmud*. Therein, we find that nashim/women are not obligated in bris or hatafat dam brit (HDB) because they are born circumcised. Further, they only obligate bris for males born with a foreskin; the majority opinion for males born without (‘adam nolad mahul’) is that they are obligated in HDB because of the fear of a hidden foreskin.
Therefore, we must determine if transgender men and transmasculine people without genital surgery should be considered halachically* n’kevah or zakhar. Further, if they are indeed considered zakhar, are they to be considered nolad mahul (born circumcised)?
Who is a zakhar/male or an ish/man?
This teshuvah starts from the chazakah that the traditional halachic understanding of the terms zakhar/male and n’kevah/female are exclusive sex categories. This holding is reached from the consistent use of these words to describe genitalia and pubertal development (rather than gender identity) in our Torah and Talmud.
This is further supported by the fact that animals in Torah are almost exclusively referred to with these terms, suggesting that they refer to sex, not gender (as there is no evidence that the Torah holds that animals have gender identities separate from their sex).
It is also presumed that the terms ish/man and ishah/woman refer to a man or woman’s social and gender role because these terms are used in halachah in relation to a person’s social obligations in marriage, testifying, mitzvot, purity, etc., not the status of their physical bodies. As a noteworthy example from our Torah, King David commands his ben/son to ‘be an ish’, implying a social category not automatically applied to those of the male sex.
So if zakhar and n’kevah are halachic mutually exclusive sex categories, it follows that one must possess the relevant sex characteristics to be defined as either one. Thus, a trans Jew with exclusively ‘female’ primary and secondary sexual characteristics must be halachically n’kevah and exempt from bris or HDB. Therefore, according to my understanding, transgender men and transmasculine people before or without hormonal or surgical intervention are not obligated in bris or HDB.
Does medical transition (not including genital surgery) affect halachic sex?
Neither our Torah nor our Talmud explicitly discusses the halachic status of those transitioning from one gender to another. There are cases in the Talmud and kabbalistic/mystical works of those who change sex, who are recognised as full members of their new sex. However, these miraculous, Divine transitions do not mirror (at least, literally) the experiences of trans individuals, who must initiate for themselves any transformation of their bodies. Additionally, such examples specifically ensure fertility preservation. Because it is not currently possible to surgically create the reproductive ability of the opposite sex to a person’s birth identification, little can be drawn from these cases.
Some poskim hold that a person cannot change their halachic sex (that is, shift from zakhar to n’kevah or from n’kevah to zakhar) despite all social, legal and medical transitions. Generally, those who hold this way do so on the assumption that genital appearance at birth permanently establishes a person’s sex, regardless of surgical intervention. Accordingly, this would mean that someone AFAB can never be halachically zakhar and thus never obligated in the mitzvah of bris or HDB.
However, Chazal* did not (at least exclusively) hold by this genotypic view of sex: they also discussed sex according to body parts and secondary sex characteristics. Further, in the case of a saris adam (a male who has their genitals severed by human beings), they acknowledged that an operation on genitalia could affect halachic sex status, which would imply that the traditional understanding of sex was not entirely based on genotype (original genetic material).
In further contradiction to the genotypic determination of sex, no Jewish authorities perform chromosome checks to verify the halachic sex of their entire community: we all rely on normative genital appearance at birth and pubertal development to determine sex. Even in cases of intersex children, the majority accepted ruling, as explained by Rabbi Waldenberg, is to justify operations on intersex children to fit their bodies into the male/female sex binary because
ברור שרק האברים הממשיים החיצוניים המשונים בין זכר לנקבה המה הקובעים בזה למעשה
Clearly, only actual external organs which are different in the male and the female are determinative in practice.
Furthermore, if communities made a chidush* to start chromosomally testing their kehillot*, they would find that sex-chromosomal abnormalities also happen to non-visibly intersex people and would reveal a much higher number of people who fall outside of their definitions of zakhar or n’kevah. This discovery would have several complex halachic implications in Orthodox communities regarding minyanim*, zimmunim*, yichud*, marriage, etc. Therefore, adherence to the genotypic definition of sex is ill-advised, especially in non-egalitarian spaces.
If further argumentation against relying on the genotypic definition of sex is required, let us flesh out the implications of this definition. Those who hold that one’s genital appearance at birth establish their permanent halachic sex (except with the tumtum, explained later, and the saris adam) would require trans Jews to disclose their birth sex and status as transgender individuals voluntarily. This disclosure would be necessary, as we live in a world where it is possible to change birth certificates, identification documents, physical appearance, and genitalia. Such disclosure would present a risk to the one disclosing being excluded or discriminated against and put them in the position of creating strife within a community. All these factors could permit them to change the facts of their situation for the sake of peace (mutar le-shanot mipnei ha-shalom), entirely nullifying the objective of obligating disclosure.
Even if trans individuals’ obligation to disclose their statuses overrides these concerns, it would inevitably create situations of marit ayin*, where men assumed to be males appear to be desecrating or not observing the mitzvot ח׳ו*, or where we force those who appear entirely male into female-only spaces, and vice-versa, with obvious inappropriate and uncomfortable repercussions.
Two alternative approaches have been suggested by modern poskim* to avoid these situations. First, the Dor Tahapuchot suggests that transgender men should navigate Jewish communal life according to men’s norms, even though they have not changed their halachic sex. Thus they are not obligated in the mitzvot of zakharim, like bris, almost as if they are a n’kevah who has taken a vow to be an ish.
This approach is in line with my explanation of Chazal’s conception of gender being a social and cultural role, at least not entirely determined by sex. But, obviously, it does not address the unique needs and experiences of non-binary people. And, as I have argued against, Dor Tahapuchot still relies on the underlying principle that halachic sex is permanently determined by the assignment of birth genitalia, which is not the only, majority, or kindest way to understand our tradition’s concept of halachic sex.
A second approach has been taken up by the (Conservative) Committee on Jewish Law and Standards, which holds that gender identity is automatically concurrent with halachic sex;
The endpoint of the process for halakhic purposes comes when the transgender person asserts and expresses their gender identity.
According to this reasoning, anyone who identifies as an ish is halachically zakhar, and we would presume obligated in bris if they have a foreskin or HDB if they do not. Yet, the Sharzer Teshuvah from where this quote is cited does not come to this psak conclusion, contradicting its own reasoning, as I will explain.
Further, as I have attempted to demonstrate, halachic sex in our legal texts appears to be based on physical characteristics, not on internal gender identity. Thus, on what basis can we say that one who has not (yet) medically transitioned changed their halachic sex?
It is crucial to point out that there are already many poskim who hold that a person’s genitalia at all stages of life (including after surgery) is the main determiner of halachic sex. This is a legitimate opinion within our chain of tradition. To rely on these poskim’s rulings would allow individuals to transition through the halachic sex system as their bodies do, without compromising their gender identities or compromising the delicate halachic sex system that assigns certain mitzvot, like bris, to body parts.
Of course, if we do accept that halachic sex is determined by current physical characteristics, this does not immediately resolve all difficulties. In doing so, we are then forced to determine precisely which characteristics define zakhar and n’kevah to understand where our trans Jews should be most appropriately understood.
For example, is testosterone therapy, which enlarges the clitoris and leads to the development of male secondary sex characteristics, sufficient to change halachic sex to zakhar? And, if so, is an AFAB trans Jew’s clitoral hood to be considered a halachic foreskin, or are they adam nolad mahul?
In answer to these questions, we find that Chazal sorts those without clearly and exclusively male or female sex characteristics into categories outside of zakhar and n’kevah. In our Talmud, we find that a person could be a tumtum (one with hidden genitals), an androgynos (one with both male and female sex characteristics), an aylonit (an infertile female presenting some male secondary sexual characteristics post-puberty), or a saris (a male presenting some female secondary sexual characteristics post-puberty, or a male who has been castrated).
Thus, it appears to me that those with a combination of traditionally male and female sex characteristics, such as a trans man or transmasculine person who has undergone hormone therapy, cannot be considered either zakhar or n’kevah.
What is the halachic sex of someone with male and female sex characteristics?
I would suggest that we do not refer to a non-intersex trans man or transmasculine person without genital surgery as a tumtum or a saris, given that they have neither hidden genitals nor were assigned male at birth. Aylonit seems to me an equally inapplicable label; the category bears no impact on the aylonit’s social identity or role as a woman, merely on her fertility and dues within kiddushin* and yibbum*. Thus, it appears that only the halachic category of androgynos remains a potential for trans men or transmasculine people after medical transition, and herein lies the chidush of this teshuvah.
The androgynos scenario parallels the experiences of trans men and transmasculine people: someone is established as an androgynos by having both male and female primary and secondary sexual characteristics, and they are socially recognised primarily as men. Trans men and transmasculine people after hormone replacement therapy (and including chest reassignment surgery) also have a combination of traditionally male and female sex characteristics and live socially as men or in the masculine role. As such, this would appear to be a fair and appropriate appraisal of their situation.
True, in the Talmud, an androgynos is usually identified at birth; however, I argue that we should include within this category those who later present as if they were born androgynos because I believe that halachic sex is determined by sex characteristics currently present. Just as a tumtum is re-categorised as zakhar or n’kevah after genital surgery reveals male or female genitalia, and as the saris adam is moved from the category zakhar after having their genitals removed by a human, so too, those who undergo medical treatment which results in a body with both male and female sex characteristics should be reclassified from n’kevah to androgynos.
This approach avoids the halachic and practical issues I have pointed out in previous halachic works, fits transgender people comfortably within traditional halachic reasoning, and allows future poskim to approach men who menstruate and other transgender sheylot* according to our received tradition.
Is an androgynos person obligated in bris/ HDB?
The normative ruling for sex-based halachot regarding the androgynos is that we are not sure if they should be considered zakhar or n’kevah and thus they occupy a halachic middle-ground, of sorts.
אַנְדְּרוֹגִינוֹס יֵשׁ בּוֹ דְּרָכִים שָׁוֶה לַאֲנָשִׁים, וְיֵשׁ בּוֹ דְּרָכִים שָׁוֶה לַנָּשִׁים, וְיֵשׁ בּוֹ דְּרָכִים שָׁוֶה לַאֲנָשִׁים וְנָשִׁים, וְיֵשׁ בּוֹ דְּרָכִים אֵינוֹ שָׁוֶה לֹא לַאֲנָשִׁים וְלֹא לַנָּשִׁים:
The androgynos is in some ways like men, and in other ways like women. In other ways he is like men and women, and in others he is like neither men nor women.
Thus, just to be on the safe side, they have to follow the stricter definitions of zakhar (and ish)-specific halachot and the stricter definitions of n’kevah (and ishah)-specific halachot. This is less complicated in egalitarian communities, where almost all halachic obligations are equalised, and categorising an androgynos does not impact their gender role as a man or masculine person.
Because Chazal were not certain if someone with male and female sexual characteristics was halachically zakhar in the case of bris, there is a safek* about an androgynos’ requirement to be circumcised. They argued that even if they have an uncircumcised penis, they might not have something halachically considered to be a foreskin, on the presumption that only a zakhar has a halachic foreskin. Practically, this means that an androgynos born with a penis and a vagina is required to have their penis circumcised at eight days old, just in case it is a halachic foreskin, but that their circumcision does not override the laws of not shedding blood on Shabbat, just in case their circumcision is not a mitzvah like it would be for a zakhar.
For an androgynos who is assigned female at birth, who does not have genitals labelled a penis when they are born (even with the knowledge that the clitoris is fundamentally biologically analogous to a penis), it is my understanding that the clitoral hood of a trans man or transmasculine person does not correlate to a halachic foreskin. We know that the clitoral hood does not wrap fully around the clitoris like the foreskin of a cisgender male. It is also attached to the labia minora, a separate tissue with no equivalent in cisgender males. Further, as discussed, this piece of skin is not considered a foreskin for a person who is n’kevah (as females are considered born circumcised). Therefore, a clitoral hood should be considered one of the n’kevah sex characteristics of an androgynos person, and not a halachic foreskin obligated in bris.
If an androgynos person born with an uncircumcised penis and a vagina has a safek about the halachic status of their foreskin, kal v’chomer*, a non-intersex AFAB androgynos person does not even have a doubt about having a halachic foreskin. Such a person is to be considered nolad mahul.
Trans men and transmasculine people who have undergone hormone replacement therapy without genital gender-affirmation surgery should be halachically categorised as androgynos. Given that an androgynos person born with an uncircumcised penis is not certain to have a halachic foreskin, kal v’chomer, an androgynos person born without genitalia determined to include an uncircumcised penis definitely does not have a halachic foreskin. Therefore, we should consider them nolad mahul, born circumcised, without any concern for a hidden foreskin, and such a person is not obligated in bris.
Since safek bris is d’rabbanan*, not deorisa*, we must be meikil*, based on the principle that in cases of safek d’rabbanan, we rule lekula (regarding rabbinic law, we are obligated to be lenient, and there is significant backing to apply this even in cases l’chatchilah); therefore, HDB is also not required.
Just because neither bris nor HDB is required, this does not prohibit the development of a ritual incorporating elements of bris or HDB if desired by an androgynos person without genital gender affirmation surgery, but further research is required to determine the halachically impacted aspects of such a ritual.
PART II: IS A TRANSGENDER MAN OR TRANSMASCULINE PERSON OBLIGATED IN BRIS MILAH AFTER GENDER-AFFIRMING GENITAL SURGERY?
Does genital gender affirmation surgery change halachic sex?
It is now crucial to determine if having genital gender affirmation surgery reclassifies an androgynos person as zakhar and if such surgery creates a foreskin, halachic or otherwise.
Rabbi Rabinowitz’s teshuvah argues that
Only those who have undergone full SRS (including phalloplasty/vaginoplasty) are to be considered as having changed their sex status, and recognized so by Jewish Law.
He reaches this psak from the sheylah of a man who finds that his wife has transformed overnight into a ‘full’ male. The responding Rav rules that the ‘wife’ does not require a get* from his (ex-)husband; the former ‘wife’ is now a full zakhar who cannot be taken in kiddushin*, and the marriage is retroactively annulled. Rabbi Rabinowitz implies that with the construction of normatively male genitals, a person becomes halachically zakhar. This would lead to the logical conclusion that a trans man or transmasculine person who has undergone “full SRS” is obligated in bris or HDB.
Yet, using the word ‘full’ begs the question, what about those who undergo ‘partial’ genital gender affirmation surgery?
What kind of penis can be defined as zakhar?
Rabbi Rabinowitz believes that zakhar status is achieved via “full” phalloplasty (otherwise known as ‘phallo’; using a graft to create an organ more similar in size to a cisgender penis) with vaginectomy. Please see Appendix A for a more in-depth description of these surgical terms. Rav Rabinowitz’s psak appears to leave transgender individuals who do not meet his surgical requirements as halachically n’kevah (“their sex status remains unchanged”).
Yet, as I have argued, those with male primary or secondary sex characteristics cannot be considered n’kevah and should be considered androgynos.
It is also unclear if Rabinowitz would consider metoidioplasty (known in short as ‘meta’; reconstructing the sexual organ present from birth to a more normatively male appearance) to effect a halachic change of sex. In the body of the article, he says that those who “do not have a metoidioplasty or phalloplasty” do not change halachic sex. Yet, his conclusion includes halachic sex change “only [with]… phalloplasty/ vaginoplasty)” and does not mention meta.
These inconsistencies aside, he does ask an important question. How do we determine which surgery(ies) create a halachic penis?
What is a penis?
The updated 2017 teshuvah written by Rabbi Sharzer and adopted by the Rabbinical Assembly states that:
The endpoint of the process for halakhic purposes comes when the transgender person asserts and expresses their gender identity, the names by which they wish to be called, the pronouns by which they choose to be referred, and the way they wish to live in society. It is at that point that the halakhic rulings… apply to them.
This psak states that one is alloted the halachic role of a zakhar by identifying as an ish. We would then assume that all who identify as a man are obligated in either bris or HDB, regardless of their genitalia, which, as I have previously stated, is not in keeping with Chazal’s determination that the halachic status of a person’s foreskin impacts their obligation in bris.
Yet, the psak of the teshuvah contradicts itself in ruling that there is no obligation for either in the case of transgender men or transmasculine people, even though they are halachically zakhar, at any point of medical transition. It does so by acknowledging that bris/ HDB is obligated only for zakharim born with penises and claims that an AFAB trans Jew is to be considered adam nolad mahul with no risk of a suppressed foreskin, and subsequently exempt from bris or HDB.
Yet, it seems to me amiss to force the male/female or zakhar/ n’kevah binary on trans Jews, especially when this binary is not present in Chazal. Why ignore the already existing categories for those whose bodies do not neatly conform to normative standards of male and female, further propagating the idea that male and female are the only legitimate ways to exist in our world? Why exclude non-binary Jews from halachah when our tradition is rich enough to be able to accommodate them? I believe a more nuanced approach, able to facilitate gender identity, genitalia, sex, and halachic sex, is necessary to determine who is obligated in bris.
To my knowledge and chagrin, there is no halachic guidance for what determines genitalia to be a penis. It is presumed that the sex assigned by genital appearance at birth, confirmed through pubertal development of secondary sex characteristics, will determine sex until an operation renders the genitalia conclusively otherwise (such as in the case of a tumtum who undergoes surgery to reveal their genitals and is sorted accordingly, or the case of the saris adam, who ceases to be zakhar on his castration).
We could, therefore, build our own system of requirements based on function and appearance to distinguish a penis from a clitoris. This could include the ability of the organ to produce a visible erection or to ejaculate, whether the urethra is routed through it, whether it can be used to penetrate during intercourse, if it is accompanied by testicles, or by some size requirement etc. Then we must ask, do all of these (and any other difference we can think of) have to be present for us to be certain? It is worth noting that not all cisgender penises can fulfil all these requirements.
Were there a singular surgery with singular aims and results, we could conclude easily that such a singular surgery was by itself effective in turning AFAB trans genitalia from a n’kevah sexual characteristic to a zakhar sexual characteristic. But this is not the case. Surgery for the construction of male genitalia has a spectrum of options, stages, and results, making it difficult to determine which specific combination of attributes shifts a trans Jew from androgynos to zakhar.
Given that there are no halachic requirements for what constitutes a penis in our legal codes and that we are allowed to permit the permissible, even if not previously practised, I suggest that we may rely on genital appearance in the case of trans Jews. So too, Chazal relied on genital appearance in determining halachic sex at birth and the new sex of a tumtum after their genital surgery.
Thus, if the individual’s genitals retain aspects of appearance or function exclusive to cisgender females (i.e. if hysterectomy and vaginectomy are not performed), then the individual has a mixture of male and female sex characteristics, and, as previously concluded, they are to be considered halachically an androgynos and exempt from bris or HDB.
Alternatively, trans Jews who have undergone hormone replacement therapy and chest reconstruction surgery, and metoidioplasty or phalloplasty with vaginectomy have no remaining n’kevah primary or secondary sexual characteristics. Thus it appears logical to me that they have shifted halachic sex from androgynos to zakhar. This obligates them in either bris or HDB, depending on if they appear to be uncircumcised.
Does genital gender reassignment surgery create a foreskin?
Jewish cisgender zakharim who reconstruct the appearance of a foreskin, or whose circumcisions leave their glans covered are obligated derabbanan to be re-circumcised (by a mohel* according to some communities, others permit a surgeon to perform the procedure). Thus, it is not only forbidden for zakharim to retain a halachic foreskin but also to have an uncircumcised appearance.
In fact, to avoid the need for re-circumcising, Jews today remove more foreskin from their zakhar infants than obligated de’orisa (the de’orisa obligation is known as ‘preiah’, the d’rabbanan practice today is called ‘milah’). It is, therefore, essential to determine if genital gender affirmation surgery can construct an uncircumcised appearance and, if it does, if an androgynos is also obligated to have it removed bediavad.
Rabbi Sharzer’s teshuvah states that:
Neither [metoidioplasty nor phalloplasty] creates a foreskin or anything resembling or analogous to it. Therefore, [transgender men and transmasculine people] are like someone nolad mahul, born circumcised, except that there [is] no doubt whatsoever of a suppressed or hidden foreskin… neither circumcision nor HDB are required.
I agree with Sharzer that before genital surgery, a trans man or transmasculine person’s clitorial hood is definitely not a foreskin.
However, phalloplasty can create the appearance of an uncircumcised penis if glansplasty is not performed. Metoidioplasty, too, uses the clitoral hood and labia minora to create a piece of skin that wraps all the way around the penis (which surgeons offer the option of ‘circumcising’), with the deliberate appearance and mobility of a cisgender foreskin, definitely creating something at least similar if not analogous to a foreskin.
But, in the end, as previously discussed, there is a safek over an androgynos’ obligation in bris because they are not halachically zakhar. Thus, kal v’chomer, because only zakharim are obligated not to appear uncircumcised, there is a doubt over an androgynos’ d’rabbanan obligation not to have an uncircumcised appearance constructed. As we know, regarding rabbinic law, especially bediavad, we are obligated to be lenient (sefek d’rabbanan le kula); therefore, an androgynos has no obligation to appear uncircumcised.
Someone AFAB, halachically categorised as androgynos, does not have a halachic foreskin before surgery. There is a d’rabbanan prohibition not to have an uncircumcised appearance constructed via surgery for a zakhar, and there is a safek in this prohibition for an androgynos. As there is a debate about whether a safek in a d’rabbanan prohibition must be ruled l’kula in cases l’chatchilah, I would say that it is praiseworthy but not obligatory to elect for glansplasty during phalloplasty or non-halachic circumcision during metoidioplasty and that neither requires a Jewish surgeon or a brachah*. In short, we may rely on the poskim who hold safek derabbenan l’kula even l’chatchilah, but an individual may be machmir* in this respect.
An androgynos person who has already undergone phalloplasty without glansplasty or metoidioplasty without a non-ritual circumcision is not obligated to do so, nor to have a Jewish surgeon operate. One may not create a chumrah* for these additional incisions bediavad, because an androgynos has a safek in this derabbenan prohibition.
If the operation(s) will transform all remaining sex characteristics from n’kevah to zakhar, it will change the halachic sex of the person from androgynos to zakhar, and the individual will be obligated not to have an uncircumcised appearance constructed l’chatchilah. Therefore, they will be obligated to undergo glansplasty (with phallo) or non-ritual circumcision (with meta) as part of their genital gender affirmation surgery.
Even bediavad (after surgery), they must undergo further surgery for glansplasty or non-halachic circumcision and should consult with their local rabbinic authority if this requires a Jewish surgeon (in no case does it require a brachah).
It is important to emphasise that we do not ask cisgender Jews about their circumcision status except before conversion. Our transgender kehillah members should receive the same respect.
Further, some trans men may find the halachic label of androgynos dysphoria-inducing; they may not wish to be identified in any way differently than cisgender men. This teshuvah attempts to honour the ways trans men and transmasculine people are like cisgender men and the ways they are not by laying out clearly a halachic framework that could appropriately cope with trans bodies (and people who identify outside of the gender/ sex binary). My larger aim was to open the door to wider acceptance and understanding within all Jewish communities, not to invalidate any individual’s social, legal, or personal identity. Community leaders should only utilise this framework with empathy and consent from the individual(s) involved.
Further, and to be absolutely clear, those who would be halachically identified as androgynos require the same respect, love, and acceptance within Jewish communities as halachic zakharim. As R. Yehudah b. Beteira says:
It is written: A man, his mother, and his father shall you fear, and My Shabbats shall you keep. Just as with Shabbat, there is no distinction between a man or a woman, so [too] with honour, there is no distinction between man, woman, tumtum, or androgynos.
The use of the label androgynos should be no different from the adjectives ‘tall’ or ‘blond’, affecting only the specific, limited areas where such a person is different from others, in accordance with the principals of ahavas Israel* and Adam yehidi nivra*. Turning Jews away from Jewish spaces is a Chillul HaShem, regardless of any personal opinion about their halachic decisions.
With that in mind, this chidush proposes that those whose bodies become ones which do not fit into the traditional definitions of male or female should acquire the same halachic status as those who are born with these features.
Thus, a person is a zakhar when only male sex characteristics are present and a n’kevah when only female sex characteristics are present. Anyone with a combination of male and female sex features should be categorised as an androgynos.
With this understanding, transgender men and transmasculine people who have undergone hormone replacement therapy and/or genital gender affirmation surgery without vaginectomy should be considered halachically androgynos.
Further, an androgynos transgender man or a transmasculine person without or before genital surgery should be halacically considered nolad mahul, with no risk of a hidden foreskin. Thus, they are not obligated in bris or HDB.
It is praiseworthy for someone androgynos not to have an uncircumcised appearance formed during gender affirmation surgery. However, there is no obligation, ritual blessing, or HDB if a non-Jewish surgeon operates.
Bediavad, androgynos trans men or transmasculine people without a circumcised appearance are not obligated to take on the additional incisions and do not require a Jewish surgeon in their surgeries.
A trans man or transmasculine person within the androgynos category could elect to have a symbolic HDB as part of a transition ritual, accepting the covenant of males despite not being born with the standard equipment. The Rabbinical Assembly advises that “some rabbis/mohalim will offer a blessing without shem u’malkhut*” for such ceremonies.
Those who have undergone hormone replacement therapy, top surgery, and genital reassignment surgery with vaginectomy should be considered halachically zakhar due to the absence of any female sex characteristics. These people are also adam nolad mahul, born circumcised, and are forbidden from forming an uncircumcised appearance. If they do, they are obligated to undergo surgery to create a circumcised appearance and should consult with a local rav as to if this requires a Jewish surgeon.
If a trans Jewish zakhar has already undergone genital affirmation surgery rendering a circumcised appearance, they should still proceed with HDB, although their local rav may also hold that with no risk of a suppressed foreskin, HDB is not necessary.
Finally, and briefly, alternative rituals are currently being explored for a ‘bris’ on non-cis-male genitalia, which AFAB trans-Jews may wish to explore in conversation with a local rabbinic authority.
APPENDIX A: ROUGH PROCEDURES OF THE TWO GENDER-AFFIRMING GENITAL SURGERIES CURRENTLY AVAILABLE (AS OF MARCH 2023)
- Optional: buccal mucosa graft from the cheek and/ or vaginal lining is attached to the underside of the clitoris.
- Optional: Hysterectomy and/ or removal of some or all of the internal reproductive organs.
- Optional with hysterectomy: vaginectomy; removal of inner labia and vagina.
- The clitoris is disconnected from the pelvic bone and labia minora and lengthened to form a micropenis.
- Optional, with graft: the graft and inner labia are used to lengthen the urethra along the penis, enabling standing urination.
- The clitoral hood and other genital skin are joined to form a ‘foreskin’, which can be trimmed for a circumcised appearance.
- Optional: the labia majora is used to form a scrotum (with or without removal of the vagina).
- Optional: silicone testicular implants are inserted into the scrotum to form testicles (this does not enable ejaculation).
- Optional; mons reconstruction: fat may be removed from the mons to make the penis more visible and upstanding.
– Those with metoidioplasty retain natural sensation and erection ability. – One may opt for all or any combination of the above steps. In the UK, the standard practice is three surgeries; a cheek graft, formation of the phallus and removal of inner reproductive organs, and insertion of testicular implants. Currently, only the Belgrade Centre offers this surgery in one stage.
– For a non-surgical, illustrated animation of this surgery, see:
- Skin, fat, a nerve, and an artery are taken from the forearm or lower abdomen (potentially after hair removal treatment).
- A thinner layer of skin and fat is taken from the buttocks or thigh to cover the original donor site.
- The donor skin, fat, artery, and nerve are rolled into a phallus and urethra, which will eventually gain (varied amounts of) sensation.
- The phallus is connected to the pubic mons but is not yet used for urination.
- The urethra is redirected to the end of the penis, and the original urethra is closed, enabling urination through the phallus.
- Optional: a vaginectomy is performed only if the inner reproductive organs are removed.
- Optional: A scrotum is formed with the outer labia.
- The clitoris may be buried under the scrotum or left in place to retain sexual sensation.
- Optional: glansplasty; a strip of skin is removed from the tip of the penis and hemmed to form a glans, creating the appearance of a circumcised penis. It is not yet possible to construct a foreskin with this surgery, but without glansplasty, the results appear uncircumcised (although the ‘foreskin’ cannot retract).
- Optional: implantation of an erectile device; a pump in one side of the scrotum, attached to an inflatable rod inside the penis, or a different apparatus. Alternatively, an individual may use an externally applied device to achieve an erection.
- Optional: insertion of silicone testicular implant(s).
– Surgeons may use different techniques or a different combination of stages; the above is the standard practice in the UK.
– For a non-surgical, illustrated animation of this surgery, see: https://www.youtube.com/watch?v=fe4R8B4dIO8&t=3s
APPENDIX B: DEMONSTRATING THE FRAMEWORK OF THIS PSAK
|Assigned sex at birth||Gender identity||Hormone therapy||Genital affirmation surgery||Hysterectomy and Vagenectomy||Halachic
|חייב Bris/ HDB|
(Numbers according to footnotes)
- [Jamie’s Teshuvah], Be Whole: A Halakhic Approach to Gender and Transition, by Alexandra Rose Kohanski.
- Conversion and Circumcision: A Trans Approach, brin solomon.
- Sefer HaMitzvos, Positive Mitzvah No. 206; Chinuch, Mitzvah 243.
- “Contemporary Halakhic Problems,” Volume 1, pages 100-105, Rabbi Dr. J. David Bleich, “Encyclopedia of Jewish Medical Ethics” Rabbi Prof. Avraham Steinberg, vol. III, pages 1036-1037.
- Bereshit, 17:10
- The Androgynos in the Laws of Milah and Niddah: A Potential Approach to Trans Halakhah by Alyx Bernstein.
- M. Berkowitz, ‘The Mitzvah of Circumcision’ , JTSA.edu, https://www.jtsa.edu/torah/the-mitzvah-of-circumcision/ (accessed 5th March, 2023).
- B. Avodah Zarah 27a
- B. Shabbat 135a
- Bereshit 7:2
- B. Sanhedrin 94b; B. Yevamot 61b; B. Niddah 31a; Mishnah Pirkei Avot 2:5; Mishnah Yevamot 8.
- I Melachim, 2:2; Mishnah Pirkei Avot 2:5
- B. Yevamot 64a; Or HaChaim on Bereshit 21:2; Sha’ar Hagigulim, 9.
- Nishmat Avraham: Hilkhot holim rof’im urefu’ah ‘al arba’at helikei haShulkhan Aarukh I-IV., Sofer Abraham; “Survey of Recent Halakhic Periodical Literature: Transsexual Surgery”, Tradition, 14/3 (1974), J. David; Steinberg, Encyclopedia of Jewish Medical Ethics, 4: Ovadiah Hadaya; Yaskil Avdi 7 EH 4; Avraham Hirsch, “Artificial Transformation of a Male to a Female and of a Female to a Male,” Noam, Vol. 16 (5733/1973); Aryeh Grosnass, “Extraordinary Incident of a Man Who Changed to a Woman,” Lev Aryeh 2:49; Moshe Steinberg, “Sex Change for Androginos,” Assia, Vol. 1: 144ff.; J. David Bleich, “Survey of Recent Halakhic Periodical Literature: Transsexual Surgery,” Tradition (1974), p. 96, Michael J. Broyde, “Appendix: Sex Change Operations and Their Effect on Marital Status: A Brief Comparison” in ‘The Establishment of Maternity & Paternity in Jewish and American Law’,” National Jewish Law Review, Vol. 3; Yaskil Avdi, Part 7, Even Ha’ezer #4, Responsa Lev Aryeh, Part 2 #49. Practical Modern Halacha 44 (1980).
- Mishneh Torah, Halachot Ishut 2:6, 2:13-14 2:24, 2:25, Rambam, B. Yevamot 80b. 15. Mishneh Torah, Hilchot Ishut 2:14, Rambam, ‘The Androgynos in the Laws of Milah and Niddah: A Potential Approach to Trans Halakhah’, Alyx Bernstein and [Max Strassfeld’s Teshuvah], Conversion and Circumcision: A Trans Approach, by brin solomon.
- Mishneh Torah, Hilchot Ishut 2:14, Rambam.
- Waldenberg, Tzitz Eliezer, XI:78 (11 Marcheshvan 5731, November 10, 1970), Jerusalem.
- Queremel Milani DA, Tadi P. Genetics, Chromosome Abnormalities, Treasure Island (FL): StatPearls Publishing; 2022 Jan, https://www.ncbi.nlm.nih.gov/books/NBK557691/; Zhao, Y. et al. Detection and characterisation of male sex chromosome abnormalities in the UK Biobank study. Genetics in Medicine; 9 June 2022; DOI: 10.1016/j.gim.2022.05.011
- https://en.wikipedia.org/wiki/Legal_status_of_transgender_people#/media/File:Laws_c oncerning_gender_identity-expression_by_country_or_territory.svg
- B. Yevamot 65b
- Dor tahepukhot; Jerusalem, 2004, Edan Ben-Ephraim.
- Transgender Jews and Halachah, 2017, Rabbi Leonard Sharzer MD; Ezekiel Landau, Or hayashar§30, Brama.
- Status Of Transsexuals, 2003, Rabbi Mayer E. Rabinowitz; Tzitz Eliezer 10:25, 10:26, 11:78, 22:2, Noam 5733, Volume 16, Eliezer Waldenberg. Meir Amsel, “On sex change surgery [Heb.],” Ha-Maor, Vol. 25, No. 2 (Kislev-Tevet 5733/1972): 14–21; Edan Ben-Ephraim, Sefer Dor Tahepuchot; Hayyim Greinman (Sefer Hidushim u-Beurim. Kiddushin EH 44, p. 104.3), Shaul Breisch (Sheilat Shaul, EH 9.1–2); Yehoshua Neuwirth, Nishmat Avraham, expanded second edition, YD 262.11, p. 326.
- Mishneh Torah, Hilchot Ishut 2:25, Rambam
- Mishneh Torah, Hilchot Ishut 2:24, Rambam
- B. Yevamot 80b; Mishneh Torah, Halachot Ishut 2:6, Rambam
- Mishneh Torah, Hilchot Ishut 2:13-14, Rambam
- B. Yevamot 80b
- B. Yevamot 42b; B. Yevamot 61a; B. Ketubot 100b; B. Ketubot 101b; B. Ketubot 36a; B. Ketubot 101b.
- B. Yevamot 2b; B. Yevamot 3b; B. Ketubot 35b.
- Mishnah Bikkurim 4
- B. Yevamot 83b
- Mishneh Torah, Hilchot Ishut 2:14, Rambam
- M. Bikkurim 4:1-5
- Tumtum And androgynos, Journal of halachah & Contemporary Society XXXVIII; Fall 1999 – Sukkot 5760, Rabbi Alfred Cohen; Even HaEzer 44:5, 172:8; Shulkhan Arukh, Yoreh Deah 268.
- Shulkhan Arukh, Orach Chayim 331:6
- ‘The Androgynos in the Laws of Milah and Niddah: A Potential Approach to Trans Halakhah’, Alyx Bernstein.
- Ramban Yevamot 24a, Rashba (responsa 4:48)/ Pri Chadash (Klalei Safek Safeka 110:4)/ Rav Ovadia cites many who agree, including the Get Mekushar 147c, Divrei Emet 9:4. On the other side, the following only permit this bediavad: Reem on Samag Megillah/ Ran Menachot 65a/ Rav Ovadia in Chazon Ovadia v. 1 p. 201
- Rabinowitz (n 24).
- Yosef et Ehav 3:5.
- Rabinowitz (n 24).
- Sharzer (n 23).
- Siftei Kohen on Shulchan Arukh, Yoreh De’ah 242:68:1/ Commentary on Sefer Hamitzvot of Rasag, Introduction, Chapter 15/ Tashbetz Katan 537:1/ Beit Yosef, Yoreh Deah 115:11:1/ Arukh HaShulchan, Yoreh De’ah 242
- B.Yevamot 83b
- Tosefta Shabbat 15:9
- Mishnah Shabbat 19:6; B. Shabbat 137b
- B. Yevamot 72a
- B. Yevamot 71b
- Sharzer (n 23)
- Sharzer (n 23)
- Tosefta Shabbat 15:9
- B. Bava Metzia 58b
- Mekhilta d’Rabbi Yishmael, 20:12
- Sharzer (n 23).