Demystifying R. Eliezer Waldenberg on Sex Reassignment Surgery

The Enigma
R. Eliezer Waldenberg (1915-2006), arguably the previous generation’s greatest decisor in the area of medicine and Halakhah, is cited more often than any authority concerning the halakhic efficacy of sex reassignment surgery (SRS).^[1] Ironically, the steady stream of citations notwithstanding, R. Waldenberg’s view is shrouded in mystery. Not only do his relevant responsa in Tzitz Eliezer appear contradictory, but it is unclear whether he addressed the contemporary questions of SRS at all.

This article seeks to demystify R. Waldenberg’s opinion by: 1) summarizing the secondary literature on his position, 2) reviewing his relevant responsa, 3) considering resolutions that scholars have previously offered, and 4) offering a novel, coherent reading of his responsa. We will then consider the implications for assessing R. Waldenberg’s position on contemporary questions of the halakhic efficacy of SRS. While of course any discussion of R. Waldenberg’s position may carry practical halakhic implications, that is not my purpose in this article; it is simply to set the record straight about R. Waldenberg’s opinion concerning this crucial contemporary subject.

Summary of the Secondary Literature
It is commonly assumed that R. Waldenberg held the minority view^[2] that SRS successfully changes the individual’s halakhic sex because he maintains that external genitalia are determinative in Halakhah. R. Waldenberg’s opinion is regularly cited this way in popular articles^[3] and even on Wikipedia. Scholars including Hillel Gray,^[4] Shmuel Shimoni,^[5] and Marcus Crincoli^[6] take for granted this reading of R. Waldenberg. Prominent halakhic authors such as R. Dr. Avraham Steinberg^[7] and R. J. David Bleich^[8] similarly attribute this position to R. Waldenberg. R. Mayer Rabinowitz, in a responsum that has been adopted as the official position of the Conservative movement, also relies heavily on this popular presentation of the Tzitz Eliezer (6-7).^[9]

Yet others present R. Waldenberg’s position as mired in self-contradiction. R. Idan ben-Ephraim, author of the 2004 instant classic Dor Tahapukhot, laments that R. Waldenberg presents three different rulings (!) in his three responsa on the subject. R. ben-Ephraim rues the fact that when he reached out to R. Waldenberg to clarify the aged scholar’s position, the latter had already become too ill to respond.^[10] Shimoni deems two of R. Waldenberg’s treatments to contradict one another,^[11] and, like ben-Ephraim, he offers no resolution.

Still others such as R. Yigal Shafran^[12] and R. Yehoshua Weisinger^[13] insist that even if one arrives at a consistent reading of his responsa, R. Waldenberg never addressed the question of SRS in the first place, only other scenarios such as a miraculous sex transition in which the transformation was organic and did not require plastic surgery.

No wonder that R. Waldenberg’s opinion has generated such sustained interest. Paradoxically, he is cited as having held either a definitive minority position on SRS or a perplexing position that has evaded the understanding of even highly accomplished scholars. Particularly given this wide range of readings, we must set aside what others say about R. Waldenberg, and closely consider what R. Waldenberg said himself.

Summary of the Responsa
In his first pertinent responsum (Tzitz Eliezer 10:25:26), published in 1967, R. Waldenberg was asked about the status of a heart transplant recipient: given the importance of the heart in medicine and Halakhah, does any part of the donor’s halakhic status “graft on” to the donor recipient? R. Waldenberg rejects this possibility outright, ruling that the recipient’s halakhic status remains unchanged, and that the heart is simply assimilated into the recipient’s body. As an aside, he raises the halakhic question regarding the sex of a man who reportedly transformed into a woman, or vice versa (167-9).^[14] He also notes that some sex-change surgeries are reported to have been performed, albeit rarely, to similar effect.

R. Waldenberg begins his discussion of sexual transformations by citing the work of R. Yaakov ha-Gozer (13th-century Germany) entitled Berit Rishonim. At one point, R. Waldenberg notes, the book’s publisher references R. Hayyim Miranda’s Yad Ne’eman (published in Salonica in 1804), which documents the phenomenon of sex transformations, and uses the then-commonplace anatomical model of women’s sexual organs as inside-out male genitalia^[15] to explain its scientific basis.^[16] Having confirmed the existence of this phenomenon to his satisfaction, Yad Ne’eman inquires whether the obligation of circumcision applies to a female child who transformed into a male. He rules that there is no obligation, as the requirement of circumcision only applies to one who was born a male. The clear implication is that such sudden transformations do effect a change in sexual status; it is just that circumcision only applies to a male from birth.

R. Waldenberg then quotes R. Yosef Palache’s (19th-century Izmir) Yosef im Ehav at length. After approvingly citing the aforementioned ruling of Yad Ne’eman, R. Palache rules that one whose wife turns into a man need not give a get to be divorced because the marriage automatically dissolves the moment she transforms into a man.

R. Waldenberg notes that R. Palache also cites the dissenting view of R. Eliya Abulafia of Izmir, who holds that the sex change is not halakhically recognized, rejecting both Yad Ne’eman’s ruling regarding circumcision and that of R. Palache regarding marriage. R. Abulafia then raises a further question: granting, for the sake of argument, the view of R. Palache that the halakhic sex change is effectual, what is the rule in the case of a married woman who turned into a man and then back into a woman? Would the original marriage be restored, or would the woman be considered like a new person, such that the original marriage would not remain in effect? R. Abulafia concludes that given the halakhic uncertainty surrounding this scenario, we would be well-advised to wait until such exotic events transpire to address the question.

We may read R. Abulafia’s question in one of two ways. It is possible that he is simply inquiring as to what the Halakhah would be in such a scenario. However, it seems more likely that he is not raising a mere theoretical question. Instead, he may well be critiquing Yad Ne’eman and R. Palache on the basis of a reductio ad absurdum: as soon as we grant halakhic legitimacy to such miraculous sex transformations, we are inexorably led down the path of absurdity. The case of the double transformation demonstrates that we must be careful before offering any definite ruling on a matter whose permanence we cannot predict and whose etiology we do not fully understand.

R. Waldenberg then adds that “be-hirhurei devarim oleh be-da’ati,” “in thinking about the matter it occurs to me,” that our case is comparable to one discussed by R. Yisrael Isserlein (Terumat ha-Deshen 102). R. Isserlein rules that the wives of Eliyahu ha-Navi and R. Yehoshua ben Levi, both of whom transformed into angels, would no longer be considered married to their husbands, because Halakhah does not acknowledge the existence of a marriage between a human and an angel. In elaborating this suggestion, R. Waldenberg cites R. Joseph Babad (Minhat Hinnukh 203), who asserts that if a couple is presently married, and a status change takes effect that would have disqualified their marriage in the first place, their marriage automatically dissolves.^[17] This is consistent with the view of Yad Ne’eman that the marriage is annulled spontaneously as soon as one spouse transforms from one sex to another. As to the question of R. Abulafia regarding one who changed sexes twice, R. Waldenberg notes that R. Hayyim David Azulai (Birkei Yosef, Even ha-Ezer 17) appears to raise a similar question.

Finally setting aside this digression, R. Waldenberg concludes the responsum, returning to his larger discussion regarding the heart transplant. He again emphasizes that regardless of what one holds about the question of sex change, the transplant recipient is in no way influenced by the status of the donor.

Many scholars such as Ronit Irshai,^[18] Gray (ibid.), and Shimoni (ibid.) are convinced that R. Waldenberg’s extensive quotation of R. Palache, coupled with his citations from Terumat ha-Deshen and Minhat Hinnukh, indicate that R. Waldenberg sides with the view that the sex change is efficacious. A minority of scholars, including R. Chaim Rapoport,^[19] are less sure.

R. Waldenberg’s second responsum (11:78), published in 1970, addresses a rather different question. Dr. Yaakov Shusheim had inquired about an intersex baby, one born with ambiguous sexual characteristics. The baby was now six-months old and looked largely like a female, but tests found what appeared to be one testicle that was not externally visible. Further exams indicated that the baby was a genetic male. From a medical and psychological standpoint, Dr. Shusheim explained, it would be easiest for the child to grow up as a female, but this would require the surgical removal of the testes. Was this permissible, or was it prohibited due to the prohibition against castration?

R. Waldenberg answers that it is permissible to perform the procedure and render the baby a full-fledged female. First and foremost, he argues, “the external organs that are visible to the eye are determinative as a matter of Jewish law.” Accordingly, the child is considered not an androgynous but a female; thus, there is no prohibition against removing the testes. Further, he insists, even had the baby been considered an androgynous, it still would have been permissible to establish the child’s status as a female; since he cannot father a child, removal of the testicle is not subject to the prohibition of castration.

R. Waldenberg then raises another possible concern: perhaps, in the case of the androgynous, the procedure should be prohibited because one thereby removes the obligation of mitzvot from the androgynous. R. Waldenberg dismisses this objection, explaining that there is no concern for removing the child’s obligation in mitzvot since one is simply reestablishing the child’s status, which in turn generates a new halakhic reality. This is particularly true, he adds, before the child reaches the age of obligation in mitzvot.

He concludes with a note of caution:

We only require a precise, clear determination if in fact through the performance of the procedure performed upon the androgynous he will change and truly be transformed to a definite female. What is more, Maimonides has established as practical Halakhah in chapter two of the Laws of Marriage, ibid., that the essence of an androgynous can never be established with certainty. Therefore one must go back carefully to determine if the reality has now changed substantially, or if medical knowledge has developed.^[20]

This second responsum makes it clear that as a general principle, we follow the external organs in establishing one’s sex. According to those who read his 1967 responsum as establishing that the sexual organs determine the child’s halakhic status, the 1970 responsum is fully consistent with the 1967 answer. This reading would confirm that R. Waldenberg allows for the establishment of a sex change through both medical and natural means.

Things appear to take an unexpected turn in his final responsum on the topic (22:2, 1997), in which R. Waldenberg addresses a case posed to him by R. Mordechai Eliyahu regarding a man whose sex had transformed under circumstances that are left unclear. The parallels between R. Waldenberg’s 1967 and 1997 discussions are striking, including R. Waldenberg’s extended citation of the Yad Ne’man and R. Palache. This time, however, he goes on to cite the continuation of R. Eliya Abulafia who, after critiquing R. Palache, adds that “silence is fitting in an upside-down world and in an uncommon matter.” After citing R. Abulafia’s aforementioned query regarding the marital status of a man who had transformed into a woman and back into a man, R. Waldenberg adds,

We see and stand to know of numerous transformations that can exist in this matter of Jewish law, until they can arrive at a clear decision regarding every single question that arises in this scenario for a man or woman.

After citing a comment of Korban Netanel, who notes that he knows of instances in which an androgynous was able to both give birth to and father a child, R. Waldenberg concludes: “Accordingly, it appears to me in humility that in this case before us, we should assign it the status of an androgynous [or tumtum].”

Approaches to Resolving the 1967 and 1997 Responsa
The 1967 and 1997 responsa, many scholars note, seem contradictory. The former appears to side with the view that Halakhah recognizes a miraculous sex transformation, whereas the latter concludes that such a person should be considered an androgynous. Indeed, some scholars found this problem so compelling that they expressed astonishment at those who claimed that there is no clear contradiction.^[21] How, then, do scholars reconcile this glaring discrepancy?

Some, such as Shimoni, simply acknowledge that R. Waldenberg must have contradicted himself or changed his mind, initially maintaining that the sex change is effective and later expressing uncertainty. While this is plausible, it strains credulity to imagine that without any hint that he was reevaluating his position, R. Waldenberg essentially repeats the same presentation verbatim with minor variations, only to arrive at an entirely different conclusion.^[22]

Ronit Irshai offers another resolution, proposing that the latter responsum, which was composed a full three decades after the former, addresses the much more contemporary case of SRS. This is likely, she adds, because in the 1967 responsum, when such surgeries were rare, it may be assumed that the case was one of an intersex individual or an someone with another physical anomaly. By 1997, however, the debate over transgenders had already reached a fevered pitch in the United States, which had ripple effects across the globe. It is therefore reasonable to suppose that R. Waldenberg was asked by R. Mordechai Eliyahu about a case of SRS in which the individual undergoing a sex reassignment procedure previously had unambiguous genitalia. In such a case, R. Waldenberg is unwilling the grant the individual the full halakhic status consistent with the sex transition.

Why, then, does he declare the individual an androgynous? Irshai suggests that R. Waldenberg well understood that the motivation for one to undergo such a procedure is an experience of disconnect between one’s sense of self and one’s physical sex. Recognizing this dysphoria, R. Waldenberg innovatively applies the category of androgynous.

Irshai’s solution is intriguing and well-researched, but a careful examination of both responsa indicates that her interpretation is not supported by the text. The overwhelming similarities between the 1967 and 1997 responsa suggest that R. Waldenberg is addressing the same case. As she acknowledges, Irshai is forced to assume that the 1997 responsum refers to surgery, though this is left unstated in the responsum. Further, the suggestion that the 1967 responsum refers only to surgery performed on an intersex individual is even more problematic: what, then, of the case of the supernatural transformation? Was that also a case of an intersex person? That seems exceedingly unlikely.^[23]

Irshai’s conceptual accounting of R. Waldenberg’s androgynous ruling is also inconsistent with his citation of Korban Netanel: whereas Irshai proposes that the status of androgynous in this case is due to a deeper tension between the internal and current physical state of the individual, Korban Netanel points exclusively to the physical characteristics of androgynous individuals, some of whom, he observes, have the physical characteristics of both males and females in that they both sire and carry babies.

Finally, while her proposed reasoning for R. Waldenberg’s assignment of an androgynous due to dysphoria is intriguing, the suggestion is logically unconvincing. The presence of dysphoria exists prior to one’s choice to undergo SRS. Thus, R. Waldenberg should have applied this logic even absent SRS. That he does not do so suggests that his androgynous ruling is not due to the underlying dysphoria, but due to a physical effect or question that exists only after the transition is completed.

Approaches to Resolving the 1970 and 1997 Responsa
There is also an apparent contradiction between the 1970 and 1997 responsa. If, indeed, R. Waldenberg rules in the 1970 responsum that the baby’s sex follows the external genitalia, why does he rule in 1997 that a natural sex change is ineffectual?

Here too a number of possibilities present themselves, some of which flow from the aforementioned resolutions between the 1967 and 1997 responsa. For instance, if we hold that R. Waldenberg changed his mind, we can simply say that his 1967 and 1970 responsa are consistent with one another, and that the 1997 responsum reflects his revised opinion. According to Irshai, whereas the 1970 piece addresses an intersex individual, the 1997 case involves someone whose external sexual characteristics were exclusively male or female.

In a recently-completed dissertation on R. Waldenberg’s approach to halakhic ruling, Yehoshua Glazman offers another resolution. Glazman contends that R. Waldenberg is only willing to consider the change complete when it does not violate any religious norms. Thus, reading the 1997 responsum as referring to SRS, Glazman explains that R. Waldenberg is uncomfortable permitting the transition to take full halakhic effect. He therefore settles on the intermediary status of an androgynous.^[24]

While this position is plausible, it is subject to a number of weaknesses. Like Irshai, it assumes that the 1997 responsum refers to SRS, for which there is no evidence. Further, nowhere in his 1997 discussion does R. Waldenberg make any mention whatsoever of the permissibility or impermissibility of SRS. Again, his reference to the Korban Netanel suggests that he sees this as an intermediary status of sorts that has nothing to do with the halakhic permissibility of pursuing SRS in the first place.

There is yet another intriguing possibility worth raising, namely that R. Waldenberg is drawing an implicit distinction between beginning-of-life scenarios and situations involving older children or full-fledged adults. Thus, we might propose that the 1970 responsum rules that there is a period of time after the child’s birth during which sex changes can be efficacious. Later on, however, the matter is questionable. This may be consistent with the fact that early-life surgery for intersex babies are common.^[25]

But this too poses a difficulty: there seems to be no basis for creating a sex identity cutoff age. At what point is such a surgery no longer able to definitively determine the child’s sex? Are six days different than six months, or six months different than six years? Theoretically speaking I can imagine distinguishing between pre-Bar Mitzvah and afterward, but R. Waldenberg clearly does not entertain that possibility.

How then can we draw the line between a permanent sex status and an impermanent one? And what exactly is the logical basis for drawing such a distinction? Even if we were to resolve this knotty problem, it does not help to resolve the apparent contradiction between the 1967 and 1997 responsa.

A New Interpretation
The common denominator between the interpretations we have examined is that they do not sufficiently account for the text of R. Waldenberg’s responsa. Popular sources and even some scholars, lacking rigorous research, merely reiterate the widely-cited view that R. Waldenberg sees the external organs as determinative. Others only take into account one or two of the three pertinent responsa. And even careful readers of R. Waldenberg often fail to account fully for key parts of his presentation, such as his comparison between natural and medical transformations, the purely theoretical context of his 1967 discussion, and his pivotal discussion of R. Abulafia toward the end of the 1967 and 1997 responsa.

To pull together the three texts, then, we may recall that the 1967 responsum only raises the issue of sex change as a theoretical aside. What is more, a close reading demonstrates that Waldenberg is very particular not to take sides on the issue. He thus begins by stating that “mehkar gadol yesh lahakor,” much investigation (or, an important investigation) is required for one to arrive at a conclusion on this subject. He does not cite any views as dispositive; instead, he merely says, “I will mention in this [context]” the views of the various authorities he cites.

True, he spills more ink on the opinion of Yad Ne’eman and R. Palache, who rule that the sex change is dispositive. Still, this provides no evidence that he sides with their view; Yad Ne’eman and R. Palache merely happen to discuss the issue at greater length than the other sources R. Waldenberg cites. He cites difficulties with both sides of the debate, and he continues calling the matter a “safek,” doubt, even after quoting the opposing views on the issue. Even when he cites R. Yosef Babad, whose discussion of Eliyahu ha-Navi and R. Yehoshua ben Levi is in line with Yad Ne’eman, he is sure to emphasize that “be-hirhurei devarim oleh be-da’ati,” “in thinking about the matter it occurs to me,” which strongly suggests that his comments are intended as purely speculative. And while the fact that he cites R. Babad last may leave the reader with the impression that he prefers this view, this is not correct: the simpler explanation for the placement of Minhat Hinnukh is simply that R. Waldenberg cites him by way of analogy, as opposed to the earlier texts he cites, which comment directly on the question of sex transformations.

Against this backdrop, it should come as no surprise that R. Waldenberg concludes his 1997 responsum by ruling that it is best to be stringent for both possibilities, assigning the person the status of androgynous.

While this enables us to reconcile the 1967 and 1997 responsa, these two rulings still appear to contradict the 1970 responsum, where R. Waldenberg rules that even had the child been an androgynous, it would still be permissible to perform surgery such that the child attains the status of a definite female. After all, even once we resolve any concerns for castration, the surgery should have no halakhic effect. And if in fact “the external organs that are visible to the eye are determinative as a matter of Jewish law,” why does he suggest differently in his 1967 and 1997 responsa?

Here too, a close reading makes R. Waldenberg’s intentions plain. The 1970 responsum reflects his most fundamental premise: the external organs determine the person’s halakhic status. Here and elsewhere, R. Waldenberg makes it clear that this is equally true whether the change was volitional or non-volitional, natural or supernatural, permissible or impermissible.

But this does not mean that R. Waldenberg is prepared to hastily acknowledge the validity of any sex change. Even as he recognizes the surgical procedure performed upon the six-month-old baby, he is quick to add in his 1970 discussion that the change must be complete and permanent. As he puts it in a widely-overlooked line, “We require a definitive, precise determination if in fact through the performance of the procedure performed upon the androgynous, he will change and truly be transformed to a definite female.” Only once these criteria have been satisfactorily met is the transformation fully recognized in Halakhah.

This explains his equivocation in 1967 and 1997 regarding supernatural sex transformations: in the earlier and later responsa, he rules strictly because he cannot have full confidence that the change is permanent.

Thus, in the first responsum, he accepts the basic notion that physical sex changes are, in principle, feasible. This is consistent with the view he attributes to the Yad Ne’eman and R. Palache. However, his 1967 citation of R. Abulafia’s query opens a window into R. Waldenberg’s thinking that echoes his 1970 remarks: if it is indeed possible for a man to become a woman and then return to one’s initial state, is the change truly permanent? The very possibility that the change may be reversed throws the halakhic effect of the initial change into serious doubt.

The third responsum follows in kind. It is, importantly, an instance in which he was posed a direct halakhic question. He cites the same texts as in 1967, but this time he proceeds to quote the continuation of R. Abulafia’s argument that given the uniqueness of this situation, “silence is best in matters that are topsy-turvy” and highly unusual.

He again cites R. Abulafia’s question regarding the second transformation. While it is not clear whether R. Abulafia intended this as a mere question or as an implicit reductio ad absurdum, R. Waldenberg clearly accepts the latter reading, and extrapolates as follows: “We see and are aware of many halakhic transformations that can transpire in this case until we are able to arrive at a clear decision regarding each and every question that arises in such a situation, for a man or for a woman.” In other words, there are many unexpected changes that can occur, and we dare not presume that any change is permanent unless we have strong supporting evidence.

This also explains the relevance of R. Waldenberg’s citation of Korban Netanel’s androgynous who both birthed and fathered children: this too demonstrates the difficulty in determining with any certitude the medical status of an intersex individual. Until we know for certain the medical status of the child, we cannot arrive at a definite conclusion. R. Waldenberg’s conclusion, then, is not at all surprising. Because we simply do not have enough definitive medical knowledge to rule conclusively in this matter, the individual must be treated as an androgynous.

SRS
It remains for us to address R. Waldenberg’s treatment of sex change surgical procedures. While this aspect of his discussion carries the greatest contemporary import, unfortunately it is also the most opaque. As noted earlier, in his 1967 discussion, while R. Waldenberg equates between supernatural sex transformations and SRS, he does not provide any explanation. In light of his 1970 assertion that the phenotype is determinative, not the genotype, it is difficult to see why he is uncertain about the halakhic efficacy of SRS. While we can understand why R. Waldenberg was concerned that a supernatural sex change might reverse itself automatically, this is obviously impertinent in the case of surgery.

In seeking to resolve this problem, we might seek additional insight from the 1997 responsum. But a careful reading indicates that he simply does not address SRS in that text. Whereas Irshai proposes that the 1997 responsum refers exclusively to SRS, and others maintain that it refers to both supernatural and surgical transformations, neither reading follows the plain reading of the text. In describing R. Eliyahu’s question, R. Waldenberg uses the term “nehefakh,” transformed. This is most easily understood as addressing a case of a natural transformation. This reading is supported by the fact that he uses the root “nehefakh” to describe a natural transformation in his 1967 responsum and just a few lines later in his 1997 responsum. Thus, whereas in 1967 he makes it clear that surgeries are to be treated in the same way as natural transformations, the 1997 responsum is mum on the issue.

Why, then, does R. Waldenberg hesitate to recognize the effect of SRS in his 1967 responsum? While we cannot know for sure, we may venture the following conjecture: given that R. Waldenberg describes SRS as a “rare” procedure, and in light of the then-still-experimental nature of the surgery, R. Waldenberg was concerned that the individual might later undergo an additional surgery to reverse the initial operation. While this might sound far-fetched, especially as such reversals are exceedingly rare today, there are numerous recorded cases of such reversals in the medical literature.^[26] Further, the relatively infrequent incidence of SRS in 1967 lends greater plausibility to this hypothesis.^[27] For this reason, R. Waldenberg is hesitant to consider the surgery permanent. Accordingly, he invokes R. Abulafia’s concern for the status of the individual and marital status of a person who is restored to the original sex.^[28]

One final difficulty remains with this proposed reading. If R. Waldenberg is concerned that the adult might reverse his surgery, why does he not express the same concern for the baby in the 1970 responsum? Following our line of thinking, we may suggest that it was exceedingly rare for one who underwent a surgical procedure as a baby to later reverse the surgery. By 1970 R. Waldenberg had presumably observed many surgeries performed on intersex babies,^[29] which were far more common at the time than SRS. He therefore did not deem the remote possibility of reversal in such cases to be halakhically significant.^[30]

Contemporary Implications
What conclusions, then, can we draw from our analysis regarding contemporary questions of SRS?

According to our proposed reading, based on the 1970 responsum we may state with confidence that a full, permanent change in external genitalia is halakhically determinative. Concerning a natural transformation, however, R. Waldenberg does not believe we can state with confidence that the change is permanent. He therefore categorizes such an individual as an androgynous.

In regard to SRS, he only addresses this question in 1967. For reasons that are not fully clear, at least at that juncture, he viewed SRS as an indefinite change that was comparable to a natural transformation. He therefore leaves the matter unresolved.

Where does that leave us today? On one hand, one might contend that any concern that the SRS will be reversed is too small to pose any concern in 2022, and that today R. Waldenberg’s logic would lead us to recognize the halakhic efficacy of SRS. On the other hand, given the opacity of his opinion and the necessarily conjectural nature of the interpretation we have set forward, it is difficult to state with confidence what R. Waldenberg might rule today. Moreover, as others have noted,^[31] it is quite possible that R. Waldenberg would view SRS as a cosmetic rather than true sex transformation, as the surgery does not change the internal genitalia. This may be contrasted with the 1970 case regarding the baby, in which following the procedure the child’s internal and external organs are fully female. For this reason too, he might not be prepared to recognize the halakhic efficacy of SRS.

A report of R. Hillel Aipers (Responsa ve-Shav ve-Rafa, 2:79) lends credence to the view that R. Waldenberg was unwilling to recognize the halakhic efficacy of SRS. In his discussion of SRS, R. Aipers cites R. Waldenberg to the effect that a supernatural transformation effects a sex change, but then suggests that R. Waldenberg’s ruling would not apply to modern plastic surgery, and that the individual retains the original status. R. Aipers then adds the following: “Afterward I asked R. Eliezer Waldenberg, author of the Tzitz Eliezer, who told me that we must nonetheless bring the individual as close to Judaism as possible.” This suggests that R. Waldenberg implicitly assented to R. Aipers’ assessment that contemporary SRS does not effect a sex change.

In principle, then, R. Waldenberg holds that the phenotype determines the sex, not the genotype. His three responsa are generally consistent with one another and present a coherent, unified view, even as the precise reasoning for his 1967 hesitancy to recognize the halakhic effect of SRS remains unclear.

In the end, though, R. Waldenberg does not present enough information for us to determine his position regarding SRS in 2022. Of course, it is plausible for a contemporary decisor to invoke R. Waldenberg’s underlying principle that Halakhah follows the phenotype, not the genotype, in ruling that Halakhah ought to recognize SRS. Nonetheless, notwithstanding numerous contemporary presentations of his view to the contrary, the popular assertion that R. Waldenberg himself definitively held that Halakhah recognizes the halakhic efficacy of SRS does not have sufficient ground on which to stand.

^[1] This is distinct from the question of the permissibility of such surgeries, which R. Waldenberg does not address. I provide an overview of classical rabbinic positions here: https://www.yutorah.org/lectures/lecture.cfm/875685/rabbi-tzvi-sinensky/transgender-and-judaism/.

^[2] For instance, in his Dor Tahapukhot, R. Idan ben-Ephraim attributes the position that SRS does not change the halakhic sex to R. Shlomo Zalman Auerbach (cited in R. Avraham Sofer Avraham, Nishmat Avraham, Even ha-Ezer 44:3, page 137 in the Hebrew edition); R. Avraham Sofer Avraham himself (ibid., note 51); R. Shlomo Yosef Elyashiv (Kovetz Teshuvot 1:152); R. Aryeh Leib Grossnass (Responsa Lev Aryeh, vol. 2, no. 49); R. Meir Amsel (Ha-Ma’or, vol. 6, page 21); R. Hananel Lippa Teitelbaum (Ha-Ma’or, vol. 2., page 10); R. Avraham Dovid Horowitz (Responsa Kinyan Torah 4:124); R. Shaul Breish (Responsa She’eilat Shaul, Even ha-Ezer 9:4); R. Raphael Aipers (Responsa ve-Shav ve-Rafa 2:79); R. Yigal Shafran (Tehumin 21, page 117); R. Yitzhak Yosef (Ozar Dinim le-Ven u-Levat, no. 36, note 3, page 349); and R. Hayyim Greineman (Sefer Hiddushim u-Vei’urim to Kiddushin, Even ha-Ezer no. 44). R. ben-Ephraim himself adopts the same fundamental position (Dor Tahapukhot, pages 34, 69), even as he maintains that many halakhic questions hinge not on the actual sex but the outward appearance of the individual (see page 69 and his references there to numerous citations throughout the sefer).

^[3] https://www.jta.org/2016/04/05/united-states/even-orthodox-jews-starting-to-wrestle-with-transgender-issues/amp.

^[4] “The Transitioning of Jewish Biomedical Law: Rhetorical and Practical Shifts in Halakhic Discourse on Sex-Change Surgery,” Nashim 29 (Fall 2015): 81-107; at 88-9.

^[5] “”Legal Recognition of Sex Change,” Mehkarei Mishpat 28 (2012): 311-352; at 340.

^[6] “Religious Sex Status and the Implications for Transgender and Gender Noncomforming People,” Florida Internation University Law Journal 11 (2015-16): 137.

^[7] Encyclopedia Hilkhatit Talmudit, vol. 4, 611, note 78.

^[8] Contemporary Halakhic Problems, vol. 1, 100-105. Rabbi Bleich comes to the conclusion that external changes do not alter the law with regard to a transsexual, and cites the Tzitz Eliezer, Rav Waldenberg, as the only dissenting opinion. He adds that “Rabbi Waldenberg, however, cites no evidence whatsoever for this view.”

^[9]“Status of Transsexuals,” available at: https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20012004/rabinowitz_transsexuals.pdf.

^[10] Dor Tahapukhot, 102.

^[11] Shimoni, 340.

^[12] Tehumin 21 (2002): 117-120. Shafran claims that R. Waldenberg never intended to address active interventions to change one’s sex. Shafran, however, does not address the fact that R. Waldenberg explicitly refers to surgeries in his 1967 responsum.

^[13] Assia 111-112 (2019): 110-115.

^[14] At first glance, the medical realia standing behind this responsum seem implausible. Ronit Irshai (ibid., note 35), however, spoke with a medical expert who indicated that current advances in endocrinology make this more plausible than it might appear at first glance.

^[15] This was made famous by Thomas Laquer in his classic Making Sex (Cambridge: Harvard University Press, 1992).

^[16] For a brief review in context of R. Waldenberg’s citation, see Irshai, ibid., 133-135.

^[17] R. Babad offers the surprising example of such as in the case of a woman who becomes a sotah according to the position of Rabbi Akiva that biblically prohibited marriages subject to lashes do not take effect (Yevamot 49a). For further discussion regarding this surprising assertion, which is set forward by Rashi but contested by Tosafot, see Minhat Hinnukh there.

^[18] “Elucidating Rav Waldenberg’s Stance on Sex Reassignment Surgery: An Examination of Orthodox and Conservative Rulings Based on his Responsa” (Hebrew), Shenaton Mishpat ha-Ivri 29 (2016-2018): 123-151, 135. Available at https://www.academia.edu/37027103/Elucidating_Rav_Waldenbergs_Stance_on_Sex_Reassignment_Surgery_An_Examination_of_Orthodox_and_Conservative_Rulings_Based_on_his_Responsa_In_Hebrew.

^[19] Rapoport, Kesher – Kol Shofar Rabbanei Eiropa 34 (2004).

^[20] This is consistent with R. Waldenberg’s general viewpoint regarding medicine and Halakhah. As Alan Jotkowitz notes: “This attitude towards modern science can also be seen in two other positions of R. Waldenberg. A child born with female external genitalia is halakhically considered a female even if his genetic phenotype is male. The fact that the child has a Y chromosome is irrelevant to R. Waldenberg because the Talmud was concerned only with external appearance, not genetic makeup. He goes as far as to suggest that a woman who undergoes a sex change operation becomes halakhically a man as reflected in the external genitalia (and vice versa) and does not need a bill of divorce from her spouse because a man cannot be married to another man… (Hakirah 19 (2015), at 114). In other words, R. Waldenberg is generally suspicious of the halakhic relevance of modern discoveries such as genetics, preferring the “eye test,” which is more consistent with the way Hazal actually operated, and helps to avoid inevitable errors that creep into the findings of even leading scientists and medical researchers. See too Glazman, 334-335, located at https://asif.co.il/wp-content/uploads/2021/11/113.pdf.

^[21] Irshai, for example, responds in this fashion to Rapoport’s view that there is no contradiction at all.

^[22] This is particularly true given that R. Waldenberg was strikingly consistent in his treatment of numerous halakhic areas throughout his responsa. See, for example, Jotkowitz, who writes: “R. Waldenberg wrote extensively on how halakhah defines death and his position remained remarkably consistent over decades” (ibid., 92).

^[23] Following Rapoport; but see Irshai, 142-3, who attacks him for this.

^[24] R. Avraham Sofer Avraham goes one step further. Commenting on the 1967 responsum, he declares that there is no evidence whatsoever that one’s personal decision to proceed with a sex change has any effect whatsoever (Nishmat Avraham, vol. 3, Even ha-Ezer, 265; available at https://hebrewbooks.org/pdfpager.aspx?req=51475).

^[25] This argument may be contingent on our understanding of androgynous. Is androgynous a predetermined status that shares aspects of male and female statuses, or is it an ambiguous status waiting to be resolved? On the latter view, R. Waldenberg’s view makes more sense: so long as the individual’s sex has not been determined, an intervention can establish it more firmly. Once the sex has been determined, however, the matter is less clear. Put differently, if androgynous is an undetermined status, then choosing one side or the other is not nearly as objectionable as changing the sex. However, if we were to maintain that androgynous is a positive status in its own right, R. Waldenberg’s distinction would be far less tenable.
One might object to this analysis due to the fact that R. Waldenberg cites the view of R. Yose that androgynous is a berya bifnei atzmah, which would seem to suggest that androgynous constitutes a positive status in its own right. However, numerous commentaries understand R. Yose to hold not that an androgynous constitutes a truly independent category, but that the androgynous is temporarily treated in certain respects as a man, and in other respects like a woman.

^[26] See, for example, Cecilia Dhejne, Katarina Öberg, Stefan Arver, Mikael Landén, “An analysis of all applications for sex reassignment surgery in Sweden, 1960–2010: Prevalence, Incidence, and Regrets,” Archives of Sexual Behavior 43 (8) (November 2014): 1535-1545. The authors note that of the 767 Swedish individuals who applied for SRS, 15 later came to “regret” their decision, which the authors define as applications to reverse the surgical procedure among those whose sex identity had previously been transformed. More telling, the percentage declined significantly over the course of the years converted by the study. It should be noted that given that the study concludes in 2010, one may conjecture that this trend likely continued in the 12 intervening years.

^[27] See Mary Ann Horton, “The Prevalence of SRS Among US Residents, Out & Equal Workplace Summit,” September 2008, http://www.tgender.net/taw/thbcost.html#prevalence, who cites data that the quantity of SRS in the United States in 1968 was approximately 1:100,000 MTF and 1:400,000 FTM.

^[28] The one difficulty with this interpretation is R. Waldenberg’s reference to surgery in his 1967 responsum. However, we may resolve this difficulty in one of two ways. First, it is possible that he merely meant to suggest that this case requires further analysis. Second, given that knowledge of such transformations were new and spotty, he may have left open the possibility that such surgeries could be reversed, either by surgery or even on their own.

^[29] In the United States, these surgeries were common since the 1950s. See Anne Fausto-Sterling, Sexing the Body, chap. 4, 78-114. For Israel, while I have not found clear data from the 1960s and 1970s, Limor Meoded Danon, “Intersex Activists in Israel: Their Achievements and the Obstacles they Face,” Journal of Bioethical Inquiry 15 (4) (2018): 569-578, implies that such surgeries were commonplace in Israel, as elsewhere, from the 1950s and on.

^[30] See Fausto-Sterling, “The Five Sexes, Revisited,” The Sciences 40 (4) (July-August 2000): 18-23. Fausto-Sterling acknowledges the rarity of such reversals even as she advocates for a paradigm shift toward a less invasive approach to medical treatment of intersex babies.

^[31] See, for example, Shafran, Tehumin 21, 117-120.