Sheilah/ שאילה:
May we perform a conversion for a transgender individual for whom milah/ hatafat dam brit poses a sakanah?
אפשר להתגייר אנשים טרנסג’נדרים למי מילה או התפת דם ברית היא סכנה?
Teshuvah/ תשובה:
Halakhah is the path by which our people have been inspired and guided throughout our exile. It was the means by which we transitioned from a Temple-centered people, to a tradition in which the individual could connect to Hashem yitbarakh and to one another, no matter where they are found in the world.
We are but the latest link in this enduring chain of tradition. We, like our ancestors before us and like our descendants to come, struggle to strike a balance between our traditions and the changing world in which we live. This is an eternal struggle, always seeking balance, always adapting, and never ending. Halakhah is itself a testimony to this. Throughout the centuries our rabbis, z”l, have struggled with our texts, adapting them to new realities and changing them when old circumstances became untenable. Whether it was in the Bablyonian academies, Islamic lands, the shtetl, emancipated Europe, the wake of the Shoah, or our modern day, we have continued to walk this path. So too today, halakhah is being inspired and transformed by those who historically have been excluded from the study halls and the halakhic process.
It is said that all of the Jewish people, who were and would be, stood at Sinai together to receive the Torah. Moses stood with Rabban Gamliel, who stood with Rashi, who stood with R’ Moses Karo, with R’ Zacharias Frankel, with R’ Abraham Joshua Heschel, with R’ Gail Leibovitz, with R’ Benay Lappe, who stood with us. We too heard the revealed word of the Living G-d and feel the internal call to interpret, understand, and apply that which we heard in light of the world in which we live.
Each individual lives a life of unique experiences, which allow them to see things in a unique way. We are called to bring this life to bear on our texts and to share our distinctive revealed Torah, for only we are able to do so. It is for this reason that we as queer and trans Jews must make our voices heard. As it is written, “The sages of each generation- each of them received what was theirs from Sinai”. By giving us this special Torah, Hashem calls us to speak, for without our voices, our tradition is not merely incomplete, but antiquated and calcified—and even worse, untrue. The time has long since arrived for queer and trans lives to bear on our holy tradition. If the Torah, if halakhah, is to continue into the future, we must take an active part in deciding what that present will look like, thereby influencing generations to come. A halakhah that ignores the new and remains frozen is destined to stagnate. A halakhah that sees the world for what it is and seeks ways to preserve our traditions while responding to the real needs of the world is destined to thrive.
R’ Simon Greenberg, z”l, writes of Torah:
“The schools of Spain, Northern Africa, Germany, and Eastern Europe, the needs of new situations, the contacts with new cultures, all left their marks in the commentaries upon the Talmud, in the new codes that were formulated, and in the new legal, theological, moralistic, and liturgical literature that developed. This process, which has continued down through the ages with varying degrees of vitality in different countries and eras, is still functioning within Judaism. The oral Torah thus continues to grow and, within limits, to change”.
So, how is this growth to happen? Halakhah is a system with rules and customs that the posek must follow in rendering p’sak. This systematic approach has allowed our people the world over to adapt halakhah to their unique circumstances while remaining in conversation with our people as a whole. The flexibility of this system has allowed our people to remain unified, in spite of distance and time. Despite radically different conclusions, this system has made it possible for Ashkenazi, Sefardi, and Mizrachi Jews to share meals, daven together, and to fulfill the commandment to love our fellows as ourselves.
Halakhah as a system is the continuation of interpretation and application, going all the way back to Sinai. Hashem revealed Their Torah to the Israelites and almost immediately, it began to be interpreted. Alongside the Written Torah was given the beginnings of the Oral Torah: from the Tannaim, to the Amoraim, to the Geonim, to the Rishonim, and to the Achronim, our traditions have been recorded and transmitted to successive generations, each passing to the next the tradition along with their understandings and interpretations.
We are but the latest link in this chain, continuing to pass along this tradition that we truly cherish. It is my prayer that this teshuvah will be one of the stepping stones in this chain of transmission, serving as a step by which the system can adapt to the needs of our world, and as a step by which our descendants may continue to push forward towards a world more perfected.
Conversion has long been established in our tradition, with Abraham and Sarah as the first converts, all the way to Ruth, among whose descendants would be King David, and eventually the messiah (may they come speedily in our days). While the exact requirements of conversion have evolved over the centuries, brit milah—circumcision—has remained central to this process. Historically, milah was performed on any child or adult convert who had a penis. In the mind of our ancient ancestors, and later in the minds of chazal, this was a given. In our day, righteous individuals continue to approach our communities seeking to join our people, among them individuals who are transgender. For some of these individuals, brit milah is a barricade to their conversion as a result of dysphoria. It is my opinion that we are duty bound to investigate whether the halakhah may provide any pathways to tear down this barrier.
It has been argued by many that the chiyuv of milah/ hatafat dam brit is incumbent upon any individual who has a penis (whether having a foreskin or having been medically circumcised at a previous time), and is therefore based on the anatomy rather than the gender identity of the individual. This approach suggests that any individual with a penis is obligated in milah/ hatafat dam brit, which includes many transgender and non-binary individuals. A situation which poses a challenge to the conversion process is one for whom milah/ hatafat dam brit would be a sakanah, such as hemophilia or gender dysphoria. In the case of one who has hemophilia, the medical danger of undergoing surgery is too great a risk. Similarly, for many who have dysphoria, the danger of this surgery is too great. If an individual could not safely be circumcised, could they convert without it?
Notwithstanding, it is my opinion that such individuals, who are born to a Jewish gestational parent, would be patur from milah/ hatafat dam brit should the fulfillment thereof be a sanakah, based on the principle of pikuach nefesh. We make no distinction between physical and mental health in this regard as modern medical and psychological professionals have demonstrated clearly that the two are heavily interrelated and have profound effects on the overall wellbeing of the individual, and in any case of risk to an individual’s wellbeing, even one of safek, we are machmir in the preservation thereof. Even within the canon of rabbinic literature, there are sources which support this. In Bavli M. Yoma 83a, the sugya brings the case of an individual who feels ill and believes that by eating, they will be healed. Even if experts believe the individual need not be fed, we permit the individual to eat nonetheless, as “the heart knows the bitterness of its own soul”. This case is codified in the Shulchan Arukh as well as the Halakhot Gedolot and the Peninei Halakhah. Based on the opinions of mental health experts such as Dr. Dave Eldredge, as well as the sources presented above, it seems that in matters of halakhah, we must treat mental health in the same way as we would physical health. It is clear in the sugya that the advice of experts carries great weight in halakhic decisions, but the individual is the foremost expert in their own needs.
In addressing our sheilah, the majority of poskim hold that an individual who has a penis must be circumcised in order to convert, even in the case that there is a serious danger to their health (such as hemophilia or other conditions). Such individuals would therefore be unable to convert, with the sources going so far as to prevent such a conversion even should the individual be willing to accept the risk circumcision would pose, lest harm come to them. There are, however, several Achronim who hold that such people would be patur from milah/ hatafat dam brit and would therefore be permitted to convert.
One opinion that prohibits conversion in a situation in which circumcision is dangerous is that of Rav Ephraim Greenblatt, z”l. He argues that the prospective convert may eventually become healed and thereafter the danger would be removed, such that the circumcision and conversion would then be able to go forward at that time.
בדבר השאלה בנכרי שרוצה להתגייר ורופא אמר שסכנה למולו….ודעתו בחולה שיכול להיות שיתרפאת עתה המילה מעכבת….ואם כן משמע דאין שום עצה לקבלו בלי מילה
Concerning the sheilah of a non-Jew who wishes to convert and a doctor said that it is a danger to circumcise them…And his opinion (see sh”ut Zakhar Yitzchaq) concerning an ill person who may be healed, currently delays milah…. if so by conclusion there is no advice to accept them [for conversion] without circumcision.
The impetus behind prohibiting the conversion is due to the possibility that the illness may be healed, thereby allowing the convert to be safely circumcised and the conversion to go forth in the typical manner. Rav Greenblatt further writes that this is also the reasoning behind the opinion of R’ Weinberg in Seridei Esh 2:67–68. This is further elaborated in R’ Mandl’s teshuvah on the same sheilah:
However, in our case we are dealing with a situation where a potential convert cannot be circumcised now, and possibly now only….Therefore, one could draw the conclusion that with a potential convert who is ill, who could possibly be healed in the future, conversion, without circumcision at the present time would, therefore, be forbidden by Jewish law and postponed until the possible improvement of the medical condition.
In summary, the conventional opinion amongst the majority of poskim is that in a situation wherein an individual who wishes to convert is unable to be circumcised, the conversion is placed on hold until a time that they may be healed. For these poskim, the possibility that the individual may become healed is essential to their p’sak.
Regarding advances in medical knowledge, it is clear in the halakhic sources that new developments in knowledge are valid factors in deciding how to apply halakhic precedent. In some cases, it may “be used to justify the abrogation or modification of a norm or a matter of precedent when the evidence proves that the norm or precedent had been erroneously decided on the basis of an inaccurate answer to a question of fact [about a specific medical question]”.
We know that certain medical conditions are life-long, and that postponing circumcision until one’s condition changes is not possible. While treatment may exist to mediate symptoms, many underlying conditions do not go away, making conversion in these circumstances impossible in light of halakhic precedent. Given the above source by Rabbi Roth, shlit”a, insomuch that the original p’sak was based on a medical presumption which is known to not be the case in our situation, there is room to reevaluate the p’sak as it stands.
Rav Greenblatt—and others who maintain that conversation should be postponed without circumcision—argue that since an individual has the possibility of recovery, they were presently unable to convert. The conversion in these cases should be then put on hold, until such a time may arise that they may recover. In our day, however, we know that many conditions are not subject to change. As such, individuals for whom the danger to their health is not subject to the possibility of being healed are outside the purview of Rav Greenblatt’s teshuvah. Such cases therefore would be permitted for conversion without circumcision. The limitation of the p’sak of Rav Greenblatt and other Achronim is further supported by the Achronim who held that a convert for whom circumcision is a danger may indeed convert, regardless of whether the condition was able to be healed or not.
It is my opinion to not fully abrogate Rav Greenblatt’s position, but rather to limit the scope of its applicability. In my opinion, his p’sak is correct for those for whom there is a likely and imminent recovery. Their conversion should be delayed, but not prohibited, until they are able to undergo milah / hatafat dam brit safely. How to apply this distinction should be made in consultation with the appropriate medical professionals and the individual in question, with the final decision being made by the rabbi.
For many trans and non-binary individuals, the experience of undergoing milah/ hatafat dam brit would be severely traumatizing. The mental anguish experienced as a result of dysphoria is a daily challenge. Being required to undergo such an intimate procedure for many would surely only aggravate their suffering, and result in avoidable danger. Given these factors, it is my opinion that individuals for whom circumcision is prevented due to danger, physical or psychological, be permitted to convert without circumcision.
Based on the sugya in Yoma 83a, we heed the word of experts in this matter. Should medical professionals indicate that they feel it is in the best interest of the prospective convert to not perform circumcision, then we heed their word. Further, should the individual before us say: “I need,” we heed them on their word alone, for it says: “the heart knows the bitterness of its own soul”. In this circumstance, the individual is the ultimate expert and we do not hesitate to heed their word.
Psak din/ פסק דין:
L’chatchilah, when an individual who has a penis approaches, wishing to cast their lot with the Jewish people, they must undergo milah and mikveh under the supervision of a qualified beit din. For those who had previously undergone a medical circumcision, hatafat dam brit is appropriate.
B’dieved, in situations where the act of milah/ hatafat dam brit would be a danger to the physical or mental health of the prospective convert, such that they would be unable to undergo the act, they are patur from the obligation; and the non-fulfillment thereof would not prevent their conversion.