The Sceptic Blog

Here is the text of the talk I gave this afternoon on this topic.

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Orthodox Jewish Attitudes to

Modern Issues of Gender Identity and Sexuality

 

Ner Yisrael / Raleigh Close Women’s Shiur 2018

 

Daniel Greenberg [1]

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A wide range of conflicting emotions and ideas come to mind when orthodox Jews living in Britain consider contemporary issues around gender identity and sexuality.

 

We remember that Abraham created our religion by discovering common humanity as a creation of a single God and that Abraham’s and Sarah’s concern and love for all people remain the bedrock of our religion and faith.  Anything that appears to foment hatred and persecution of others is as foreign to our beliefs as, and requires to be challenged in the same way as,  Abraham’s challenge of God at Sodom and Gomorrah for appearing to target the innocent alongside the guilty.

 

Then we recall specific commandments of the Torah which fundamentally oppose certain activities that appear to be becoming fast-accepted as normal within modern secular society.  In particular, in relation to sexuality, there is a Biblical prohibition against homosexual relationships which carries a death penalty[2] and is described in terms of particular severity[3].  In relation to gender identity, the specific Biblical prohibition against transvestism is perhaps only a very minor and tangential part of a fundamental issue, but it is at least a potential distraction that needs to be addressed; more challenging in relation to gender reassignment are the prohibitions of sterilisation.

 

A starting point in relation to our attitude to sexuality can be found in the blessing recited under the chuppah, which declares that God has sanctified and permitted intimate physical relations between husband and wife in the context of marriage.   The word “permitted” acknowledges that people might entirely naturally wish to have other kinds of sexual relationships in other contexts, but that marriage between a woman and a man is the only permitted context.  The sense that marriage is necessarily between opposite sexes has remained constant in orthodox Judaism; the notion that the relationship is necessarily exclusive on both sides has been more open to cultural variation – in particular, polygamy is not Biblically prohibited, but it has been regarded as morally unacceptable in almost all orthodox communities for many centuries.

 

This raises interesting questions of the inter-relationship between the commandments of the Torah, positive and negative, and culture and morality.

 

For example, the law of tzniut (“modesty”) is variable and culturally reflective, while the law of ervoh (which parts of the body require to be covered at different times) is not (or at least not necessarily).  The way in which married women approach the questions of if, when and how they cover their hair will depend on their understanding of both concepts: there will be some, for example, who find the practice of wearing luxury glamour sheitlech offensive to their sense of modesty, in terms of cost, ostentation or both; others will take a different view.  Similarly, there will be married women who will come to the conclusion that the requirement to cover their hair at all is demeaning, distasteful and so far removed from modern norms of morality and equality that they cannot accept it.  They may choose for that reason to depart from the orthodox Jewish community to a limited extent, or even entirely, or to establish individually or with others a variation of contemporary orthodox practice.  They will not necessarily expect me to affirm their practice as according to Torah law as I perceive it; but they will expect me to treat their decision with respect and as much understanding as I can manage as someone who does not share their circumstances[4].

 

In some ways, we can be proud of the fact that the Torah’s oral law was sensitive to complex issues of gender identity centuries ago.  If some parts of the modern world are now discovering – or perhaps re-discovering – that gender is neither necessarily binary nor necessarily static, the Talmud was well aware of both facts[5] and a range of intersex and non-sex states have been recognised in halachah in various ways over the years.  But mere awareness of issues is only the beginning of the story, if that – the cultural sensitivity of the rabbinic world to issues of gender identity appears to have varied between time, place and communities.

 

As in so many aspects of our behaviour as a community (notably our treatment of women) we must be careful to separate between cultural habits that we have absorbed from our surroundings, and religious requirements.  In recent decades, for example, homosexuals were treated in a way that must have appeared to them as a hypocritical persecution: in particular, whether or not as a relic from the ecclesiastical origins of much of English criminal law, homosexuality remained a criminal offence in the United Kingdom at a time when other sexual behaviour that is more obviously immoral or unethical – notably adultery – was not unlawful.  And, of course, there are many places in the world today where homosexuals are at constant risk of persecution and death, sometimes as a matter of law and sometimes as a matter of social norm.  The prohibition on homosexual activity is a religious law; bigotry about and intrusive persecution of homosexuals is a cultural weakness.  (In the same way, that women do not read aloud from the Torah in orthodox services is an expression of religious law; but expecting women to leave shul to set out the kiddush during the repetition of the Amidah would be a reflection of outmoded assumptions about women’s role in society, that we absorbed from former host communities and have been slower to shed than secular society.)

 

Gender identity again raises both halachic and culturally-dependant issues, both in relation to identification as transgender and in relation to rejection of gender identification entirely.  There are some prohibitions: including that of wearing clothing specifically designed for the other gender.  But those are relatively marginal (and the entire notion of what “men’s clothing” or “women’s clothing” is necessarily depends on cultural norms and variations).  In terms of self-expression, and encouraging people to demonstrate and explore aspects of their personality in a way that diminishes the importance of identifying with a particular gender for many purposes, it may be that attitudes and behaviour could change very considerably without infringing any religious law, and that part of the reluctance or unease that some may feel in relation to the topic is more a reflection of prejudice and cultural bigotry than of any particular religious value.

 

Perhaps nowhere is the assumption of binary gender self-identification so apparent in Judaism than in the morning brachot, where men make a blessing on not having been created as a woman and women make a blessing on having been created in accordance with the Divine will.  Some may see that as a liturgical reflection of an immutable principle of Judaism, and that anything that blurs the distinction between the genders, or suggests that binary identification is not necessarily accurate or helpful for all people, is a departure from the parameters of orthodox Judaism; and I doubt that anyone would deny their right to that interpretation.  And some contemporary rabbinic discussions of transgender issues focus on these brachot as support for the importance in Jewish thought of maintaining a clear gender distinction.  But is there an aspect of the choice of blessings that is culturally reflective of the times in which that part of the liturgy was settled (and settled by men, of course)?  If there is, is it possible that in time it will become generally accepted that the language of the blessings requires revisiting and modifying?  If we make every word of every blessing into an immutable norm, will we be imposing an unnecessarily sterile culture onto a fundamentally dynamic and developing religion?[6]

 

There is certainly a fear within some parts of the orthodox community that the trend towards acceptance and normalisation of homosexuality and non-binary gender may go beyond counter-balancing persecution and oppression and may become, or may have already become, a kind of actual or perceived proselytising movement.  The fear for some, perhaps, is that it becomes a fashion that may encourage some people who would otherwise follow conventional behaviour patterns, to opt out of behaviour that is common in the mainstream community, and that this may lead to their alienation and them denying themselves family experiences that, whether or not they are religious requirements, are certainly central to how many people express their Judaism and find spiritual growth and expression.

 

To some extent, of course, this depends on whether sexuality is a lifestyle choice or an inherent (whether or not static) biological characteristic; perhaps we may discover more about that in the future, and there are strong assertions on either side – and for the present it seems possible that for some people it is only the one, for some it is only the other, and that for some it may be a bit of both.  That means that it is probably important, in discussing Jewish attitudes to sexuality, to avoid assuming either that it is necessarily entirely genetic or that it is necessarily entirely a matter of choice, and remaining sensitive to the different religious and cultural implications for people who perceive it as being wholly or primarily one or the other.

 

On the other hand, we all know that it has always been the case that some people uncomfortable in their gender, or in communal and societal expectations about their sexuality, have felt uncomfortable in the Jewish community, sometimes imprisoned in what they see as a lie – and it is difficult to comprehend how horrific that must feel.  If the secular normalisation of a range of gender and sexuality issues that were once anathematised and stigmatised in the world around us has forced us to confront our cultural insensitivity to people who are unable, or feel unable, to conform to certain cultural norms, then to that extent I believe it is to be welcomed as a needed wake-up call.  Judaism is often praised for our family-centred religious values: but in fact these are more cultural than religious, and they can be a two-edged sword; fulfilling and affirming for all those blessed to sit around a happy family table composed in a conventional way, alienating and accusing for those find themselves not blessed in that way for a wide range of reasons, of which gender identity and sexuality are just two.

 

I wonder whether the concept of tzniut – modesty – can help at all, not as an answer to the questions of what attitude we should take to issues or homosexuality and gender identity, but as a guide on how everyone should behave until these matters settle down and the appropriate attitude becomes clear[7].  A demonstration or celebration of homosexuality makes things difficult for the orthodox community: it puts us in a position where the commission of a Biblical prohibition is appearing to be flaunted as no longer prohibited, and suggests that continued adherence to the prohibition is inhumane and outmoded.  It may be that for some homosexuals anything short of this attitude is an unacceptable rejection of their own beliefs in, especially, their right to assert pride in all aspects of their personality.  And it may be that for some homosexuals it is considered a necessity to counter and reverse the bigotry and inhumanity with which they have been treated over the years.  But it runs counter to the Jewish tradition of a certain modesty and privacy around sexuality generally, and applies equally to all irrespective of sexuality and gender[8].  In the orthodox Jewish community we treat heterosexual relationships as a matter to be treated with respect and modesty; perhaps if homosexual relationships are treated in the same way it becomes more possible for the community to treat homosexuals in the same way as others.

 

If anything other than public and positive acceptance is regarded as inhumane denunciation, then the Torah forces us to denounce simply in so far as we have to repeat our adherence to an objection based on a simple Biblical prohibition.  But if members of the community can be accepted at face value, without their finding it necessary to insist upon acceptance of activity that contravenes express Biblical prohibition, and without the community finding it necessary to insist on their conforming to an artificial “normality” which is more a product of culture than a requirement of religion, the entire community can rely on a traditional sensitivity and modesty – which are both more at the heart of the religion as instituted by Abraham and Sarah – to continue without unnecessary division and disruption.

 

Some people who look on at what is happening about gender and sexuality in the world today see it as a remorseless march towards complete abandonment of all morality and norms, and fear that, for example, the normalisation and liberalisation of homosexuality are the thin end of a wedge that leads inexorably to Sodom and Gemorah.  And that is one possible interpretation of modern events.  But it is not the only one.  It is without doubt true that in an increasingly secular society based on an ecclesiastical inheritance, there may need to be a slow and painful revolution involved in shedding cultural prejudice and bigotry originally founded in religious principles that may never have been expressed in the best way and which now no longer speak for the majority of society at all.  And that revolution may be accompanied by, or achieved through, the swinging of a pendulum that may behave as pendulums do, necessarily over-adjusting before returning to a centre position.

 

But in any event, the dismantling of prejudice and discrimination that reflects values no longer supported by the majority of society does not necessarily mean the abandonment of all sexual and other morals and constraints, although it may be more difficult to agree on a societal common denominator in the absence of a single set of religious underpinning values.  But from my perspective of modern Britain, while there is an extraordinary surge to liberalisation in some ways that I find uncomfortable both on religious grounds and, probably, as a generational reaction, I see no indication of a wish to abandon morality altogether.  On the contrary, the prohibitions of incest, bestiality, forced marriage, sexual slavery and sex with children all appear to be supported firmly by consensual secular morality; and it is interesting to note that in terms of the need to provide some kind of rational basis for what remains when originally ecclesiastical laws are rejected, one can point to an abuse of trust or power and a lack of consent and mutuality as underpinning all these remaining prohibitions.

 

For those who predict an inexorable decline towards Sodom and Gemorah, it is perhaps interesting to reflect that the fact that the word sodomy was used until recently in English law as a general term for unnatural sexual intercourse[9] suggests a continuation of ecclesiastical preoccupation with particular sexuality issues rather than looking at broader conceptions of civil morality.  Our own rabbinic traditions are somewhat more discriminating.  It is true that we believe the people of Sodom to have liberated themselves from all natural constraints and to have indulged in every vice; but our rabbis focus as much on their inhumanity to each other and their dishonesty as on their liberalisation of sexuality.  And very interestingly, the first Jewish leader to oppose the people of Sodom was perhaps not the last to allow a feeling of indignation and outrage to blind him to decency; Lot is so determined to protect his guests from the Sodomite mob who oppose hospitality on principle that he offers them his own daughters to abuse: which suggests that his own moral compass had slipped rather a lot (and it is interesting to note that what first induced Abraham to separate from Lot was the lack of adherence to business ethics by his shepherds, suggesting a moral blindness that would inevitably cause his religion to become corrupted into mere residual and random prejudice and bigotry).

 

It was decent into inhumanity and insensitivity that caused Sodom to be destroyed, not their misguided liberalisation of any one area of human behaviour.  If we answer challenges to our own moral values with insensitivity and inhumanity we only precipitate a spiritual descent.

 

This note has been a discussion rather than a route from a question to an answer: I remain with a range of questions, and no definite answers.  I have a hope that as the world appears to change ever faster, if we all pray sincerely to be guided in the right paths of thought and behaviour, the Master of a Universe that is both constantly changing and fundamentally eternal will provide each of us with the sensitivity and judgment to behave appropriately in every situation that faces us.  And that requires a fundamental uncertainty and willingness to question, and to challenge even things that we thought yesterday were beyond doubt[10].

 

Gender identity and sexuality are issues that confront, and sometimes trouble, both young and old Jews and non-Jews today, perhaps as much as at any other time in the history of the world.  Those of us who believe that we know what is right for us and are comfortable with what is expected of us will hopefully encourage those who may not be blessed in the same way to look for love, care, inclusion and acceptance.

 

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[1] This note includes issues dealt with in What if God’s A Christian? – An Orthodox But Sceptical Jewish View of the World – D. Greenberg, 2018; see, in particular, Chapter 86 – Rabbi Dweck, Rabbi Bassous and Homosexuality.

[2] Obviously, the death penalty is not administered at Torah law in the absence of a Sanhedrin, and opinions within the orthodox community vary as to the future practice of criminal law in the Torah in the Messianic age – but the attachment of a death penalty to homosexual acts in the Bible is a simple incontrovertible fact.

[3] The translation and treatment of the word “to’evoh” – sometimes translated as “abomination” is a matter of particular recent contention and controversy; whatever its cultural nuances may have been originally, and however they are expected to be refined in their resonance through the ages, it is clearly a term of opprobrium; and it seems to be used for things that engender some specific emotional feeling of repulsion for many people.

[4] I find that the Mishnaic injunction not to judge someone until you reach his or her place has to be constantly kept in mind in considering issues of gender identity and sexuality.

[5] See, in particular, “for perhaps his maleness transformed into femaleness” (Bechorot 42b); status of androgynos (both male and female) and the tumtum  (neither gender status) (Nazir 12b); halachic status of tumtum for marriage (Tosefta Yevamot 11:1; Yevamot 72a) and inheritance (Baba Batra 140b).

[6] It is interesting that one of the best known instances of rabbinic discussion about liturgical modification occurred in connection with the blessing about treatment of heresy and heretics, and occurred partly at a time when it was unclear whether Christianity was a temporary aberration or a permanent development, in the same way that it is unclear whether certain changes in today’s society will turn out to be permanent readjustments of societal norms or relatively brief experimental phenomena.  (See, for example, The Eighteen Benedictions and the Minim before 70CE – Dr David Instone-Brewer, Tyndale House, Cambridge 2003.)

[7] At the risk of writing something controversial, it is certainly true that a number of causes of contention and dispute within the Jewish community sort themselves out in the course of a decade or two, or sometimes a century or two, and the most important question for interim generations is how to “tread water” while things settle down, without doing violence to any of the immutable principles and values of our religion.

[8] Indeed tzniut is all too often thought to be a set of rules about the length of women’s skirts or sleeves, rather than as an all-encompassing value (Micah – “Walk modestly with your God”) that affects, or should affect, every aspect of our behaviour: for example, to spend on a personalised number plate an amount of money that would support thirty starving families for a year is at least as much an affront to Jewish values of modesty as any other form of behaviour.

[9] See the First Edition of Jowitt’s Dictionary of English Law, 1959, p.1651; later editions, including the editions edited by me in 2010 and 2015, omit the entry on the grounds that the term has now become offensive.

[10] The angels of God are depicted in the prophetic vision as asking each other “Where is the Place of God’s Glory?” – and in the prophetic description of the spiritual bankruptcy that brought about the destruction of the Temple the prophet notes that “The priests no longer ask ‘Where is God?’”.  Certainty in religious matters is bound to breed bigotry, hatred and intolerance – doubt and a constant search for truth are essentials to productive faith.