The Olympics, Judaism, Transsexual Surgery and Testing for a Female Soul

[This week's Haveil Havalim is here.]

Jennifer Finney Boylan, in a New York Times Op-Ed entitled The XY Games (8-3-08), discusses the problem of determining whether someone is a man or a woman.

Apparently, Olympic judges need to know whether a competitor in a female event is, in fact, a female. So they’ve set up a laboratory, presumably to test gender on a chromosomal level – the old XX vs. XY.

The problem, as Ms. Boylan points out, is that gender is not nearly so simple to identify. What do you do with someone who is XXY (Klinefelter’s Syndrome)? Or, as Boylan notes, what do you do with a woman who actually has a Y chromosome, but due to androgen insensitivity never develops male sexual characteristics?

This reminded me of the difference between the way Judaism historically identified gender, and how Jews identify gender today.

Judging from Tanach, and certainly from the mishnah and gemara, Judaism defines gender based upon visible reproductive organs (whether they are fully functional or not is irrelevant) - cf many discussions about tumtum and androgynus, for example. The historical test, then, was based on appearance.

Today, though, many Jews do not identify gender based on appearance. Springing from an embrace of mysticism (from Zohar to the Ari z"l to Tanya) over the past millenium, many Jews have come to believe that men and women are different at the level of the soul.

This is very clear when we look at two arenas: Technology and Spirituality.


Technology
What happens when a surgeon forms body parts simulating the opposite sex, with hormone therapy subduing the elements of one’s birth sex? Since Judaism follows the visual, should we accept as legitimate the results of this surgery? (Granted that the surgery seems to violate various halachot; this is a separate point.)

In fact, Rav Eliezer Waldenberg z”l raised this possibility in his Tzitz Eliezer, but I have yet to see the writings of a halachic authority who would act on this – giving a transgendered male an aliyah, etc.

We seem to be uncomfortable with the idea that human intervention can change someone’s halachic status. I’m not sure this is entirely because of the morphological phenomena, either; I suspect the discomfort would persist even if gene therapy could modify a person’s chromosomes themselves. It seems that many Jews believe that there is something fundamentally different about men and women, on a level deeper than physiology.


Spirituality
The question is common: Why does the Torah differentiate between men and women, in terms of mitzvah obligations?

The answer, to my mind, is fairly straightforward: Two roles are needed, one for people who raise and nurture children, one for people who raise and nurture society. Women fit naturally into the former, because they are the only ones who can naturally gestate and birth and nurse children. That leaves the latter role for men.

However, over the past few centuries a body of apologetics has sprung up based on a mystical understanding of spirituality. Within this school, women’s souls are spiritually superior to men’s souls. Therefore, women are not obligated in the mitzvot which men need. (To my mind, this thinking is silly, and it runs counter to many classic sources, but many serious-minded people buy into it.) This is what generates different male and female mitzvah obligations.


What emerges, then, is that, like Ms. Boylan, many Jews today are not willing to identify “male” and “female” based on a chromosome (let alone an appearance). On the other hand, we don’t go by lifestyle, either. Perhaps the Maccabi Games should look into a soul-testing lab…

Daf: Sotah 15-19

Slowly, slowly, I'm getting to post some of my Sotah notes. Of course, there's a lot to say on 20-21, so that will take more time... As always, please read this with a gemara in front of you to get the full effect.

15a
The gemara indicates what I believe to be the technically correct view, that the Nazir’s חטאת “sin-offering” is not for sin, but is simply brought in the same manner as a regular “sin-offering” and so shares the name. (Ditto for the חטאת יולדת, all homiletics to the contrary.) Tosafot סבר expands upon this major issue of whether a Nazir is considered a “sinner” for having vowed to refrain from wine or not. See also Tosafot to Nazir 2b ואמאי.

15b
See Rashi אלא היא, who defines monogamous sexuality as a special human trait.

The word ונוטל in the mishnah should lose its initial ו.

16a
See Tosafot לרבות – this is very important, I think, as he views Rashi’s selection of a Sifri edition over a Talmudic edition as שיבוש הגירסא, corruption of the manuscript.

At the end of Rashi והלכה בכל דבר we find the interesting proposal of a הלכה למשה מסיני for which there is a pasuk – but the pasuk is considered only an אסמכתא support for it.

In that same Rashi, Rashi’s explanation of “uprooting” vs “adding” appears difficult to justify in the context of the כיסוי הדם and גט cases.

See Tosafot תנא ושייר on the significance of apparently exclusive numbers (“3 things are…”, or “These are the three areas…”) when we are presented with a list of cases).

Toward the end of the page, the term דרבנן is used interestingly, apparently to refer to an idea which is biblical, but is not explicit in the biblical text. We find a similar use in the imperative of rebuking a person who violates a biblical law – we include only biblical laws which are explicit in the biblical text.

16b
Our gemara here (regarding the דם of a certain bird) offers an example of experimentation by the sages to determine physical reality.

18a
See the last Rashi on the page, on the source for גלגול שבועה.

18b
See Rashi’s very interesting explanation of the word מערערין towards the bottom of the page.

19a
See Rashi on דדריה, on the proper respect to show to one’s elder. This matches Tosafot’s comment on Bava Batra 113a that Ben Azzai would never have called Rabbi Akiva "הקרח הזה” “this bald one.”

19b
See Tosafot ורבי יהודה explaining why we don’t use the “scarf method” for her.

Toward the bottom of the page we use the term בריותא and it is sometimes rendered as “health” (vs. רתיתא which refers to weakness), but that is problematic and unlikely, both in terms of spelling and in terms of the leading word מחמת. It seems to me that the word here actually is from ברי, meaning “strong” as in ברי ושמא.

Derashah: Kedoshim - Burqa Sexuality vs. Torah Sexuality

A few months ago, headlines in Israel reported a new clothing trend in Ramat Beit Shemesh: The Burqa. According to published news reports, followers of a self-styled Rabbanit had chosen to wear Burqas, veiling themselves so that only their eyes were visible.

The women involved said that they adopted this fashion for several reasons: To reduce their attractiveness to men, to hide their sexuality, and to help them separate from the material world.

This approach may well have special appeal in certain communities in Israel today as so many walls have come down over the past several years, through Charedi army units, through the spread of the Internet, through increased departure of disillusioned youth from those communities, and from the recent deaths of the leaders of the past generation.

But, ultimately, the burqa is not what the Torah recommends. The reports sparked a mixture of hostility and revulsion in Jews across the religious spectrum, because the practice seems antithetical to Jewish ideals. But the whole story raised an interesting question for me: Why doesn’t Judaism require the burqa, or something like it, for men and women?

Certainly, we could answer glibly by saying that it’s because Judaism doesn’t want us to go to extremes - but that answer is inadequate, since much of the world already thinks we go to extremes. “Extreme” generally means, “more than I do,” and so it’s a meaningless phrase - and so I’d like to know why Judaism does not prescribe the burqa, or an equivalent, for men and women.


Let’s start with a bottom-up approach, understanding the philosophy behind the rules Judaism does make, in order to explain those practices it does not support. To my mind, Judaism’s governance of sexuality is based on three concerns: Abuse, Paganism and Sanctity.


First, Abuse: From the beginning of the Torah, sexual desire led to abuse of other human beings.

Lemech marries two wives, Adah and Tzilah. The name “Adah” means “pregnant.” The name “Tzilah” means beauty. Per many commentators, Lemech intended to use one wife for bearing children and the other would be a trophy - this is the first case in which a woman is treated as an object, rather than a human being.

And it deteriorates from there. When HaShem decides to bring a Flood, the event which puts Him over the top in judgment is the antediluvian practice of powerful men kidnapping women for themselves. At that point HaShem says, “I won’t put up with this,” and He declares He is going to destroy the world.

Contrast that with the Torah’s strong anti-violence, anti-abuse stance. HaShem recognized that this powerful drive can inspire abuse of other human beings, and so He was determined to provide protection in the Torah.


The second motive is Paganism: The cultures surrounding the Jews in the Torah are all identified by their sexual behavior.

• Egypt is known in the Torah as a place in which sexuality was primary, from the time when Avraham and Sarah are concerned that Sarah will be kidnapped to the attempts of Egyptian slavemasters to violate what the Haggadah politely calls דרך ארץ, the way of the land, with their Jewish slaves.

• The Philistines were also criticized for their focus on sexuality; Avraham said of them, “I know that there is no awe of Gd here, and they will kill me to take my wife.”

• The people of Sdom sought to take Lot’s guests out and “know” them.

• Midian tried to lure the Jews into sexual liasons as a way to get them into idolatry, and succeeded even in ensnaring Zimri ben Salu, head of the tribe of Shimon.

• The Canaanite cults established the קדישה, a woman who would be available for use in the temples, sometimes as part of a ritual and sometimes not.

As the Rambam explained, HaShem assigned us strict laws of conduct in the Torah in order to help us create our own society, differentiating ourselves from these nations we had historically known.


And the third motive is Sanctity: Sexual activity offers a unique opportunity for us to partner with HaShem in Creation.

In Gan Eden, the serpent promised Chavah that if she would eat from the fruit, she would become כאלקים, Gd-like. As Rashi there explained, Chavah sought to become a creator of worlds, just as HaShem was a creator of worlds. This promise was fulfilled - human beings did, indeed, become creators, by bearing children.

Procreation is not just a mechanical deed; rather, it is the ultimate partnership between Man and Gd, the joining of physical matter with spiritual souls to usher a new life, a new neshamah, into Olam haZeh. In fact, the first Lubavitcher Rebbe, in his Tanya, contended that our involvement in creating life is so great that the thoughts of a man and woman while mating will affect the type of soul they will invite into this world.

And so, to invest this Divine partnership with the ultimate sanctity, HaShem legislated closely the way we could use our power.


The Torah’s practical laws of sexuality, including the 22 different mitzvos outlined in this parshah and last, and various other mitzvos from around the Torah, are about providing protection, creating a unique coluture, and promoting sanctity as we create human life.

• We safeguard against most abuse by preventing the situations in which it takes place. We have laws of yichud, preventing a man and woman from being secluded together, unless they are husband and wife. Our laws prevent mixed situations like dancing and swimming which might encourage improper attraction. And we have severe punishments for sexual crime, under which a rapist caught in the act may be killed.

• We build up our own culture by staying away from the behaviors that marked pagan societies. The Temple קדישה, and all such hiring, is banned. The types of dressing, and cross-dressing, in which pagan priests participated, are off-limits. The non-procreative sexual practices of those societies are prohibited as well.

• We sanctify our procreation with a sexual life that focusses on the Divine. At certain times, with certain partners, in a manner prescribed in the Torah, we reach the goal of bringing life into the world in partnership with HaShem.


If the burqa is about fear - fear of society’s invasion, or about fear of a decline in personal morality - then the Torah approach, the tzanua approach, should be about strength - our strength in preventing abuse, our strength in building ourselves into a unique community, and our strength in creating the next Jewish generation in a sacred way.

A stable, strong fealty to the Torah’s laws of tzniut will ensure that we fulfill Michah’s mandate, הצנע לכת עם אלקיך - to walk securely, privately, in holiness, and to do so with HaShem.

-
Notes:
1. I came away from this feeling incomplete; there is something I still haven't said, that I want to say. I think it's an expansion of Tznius, as a biblical concept. I may yet come back to this before Shabbos. The problem is that I'm working on a new class series, also for Shabbos, on "The Halachah of Pirkei Avos," examining the way Pirkei Avos has been quoted in rabbinic responsa. Should be very interesting, but the prep is very time-consuming. And derashos are never comprehensive, anyway.

2. For more on the Burqa fad, see Mom in Israel here and Jameel here.