Not Judging by Appearances: The Role of Genotype in Jewish Law on Intersex Conditions1
Gray, Hillel, Shofar
Jewish communities have always had children with intersex conditions, which involve atypical anatomic, chromosomal, or gonadal sex. In the last several decades, Orthodox rabbis have issued ad hoc rulings to assign sex to children and adults with intersex conditions. However, rabbinic texts reflect disunity over whether to assign gender, for the purposes of Jewish law, according to outward appearance or chromosomal makeup. This rabbinic controversy has been exacerbated by an increasingly complicated medical picture. Endocrinologists have diagnosed more than two dozen intersex conditions, across nine overarching congenital types. Such complexity makes it difficult for rabbis to make acrossthe- board decisions about gender assignment. This essay examines how rabbinic law may change because gender cannot be assigned consistently by chromosomal sex-despite the prevalence of this formulaic criterion in rabbinic opinions. Consequently, Jewish legal reasoning is poised to shiftfrom a static reliance on chromosomal sex. The essay also considers the implications of this trajectory on Jewish law towards sex change surgery and transsexuals.
Periodically, a tempest hits the sports world as questions are raised about the sexual identity of a female track and field athlete. The sex identity storm swirled around Eva Klobukowska (in 1967), Maria Patiño (1985), Santhi Soundarajan (2006), and, most recently, 18-year-old South African runner Caster Semenya (2009). Despite their female genitalia, these athletes appear masculine insofar as they lack certain female secondary sexual characteristics, such as breast development and wide hips.2 If her chromosomes are "male" (i.e., XY) and her testosterone levels are elevated, should such a runner qualify as a female athlete? In February 2010, the IOC convened a symposium for experts to reach a common understanding of how sexual ambiguities should be handled. It is sports authorities who find themselves trying to resolve these rare cases of sex assignment because, in Western countries, sports is one of the few domains in which it is legal to differentiate between males and females. Differential treatment is prohibited in many other areas, including employment, housing, medical care, and education. Granted, discrimination by sex roles remains embedded in cultural attitudes and practices, but the law steers decision-makers toward undifferentiated treatment. Besides sports, religion is another domain that is permitted to treat people differently because of their sexual identity. In Roman Catholicism and Islam, for instance, women may be limited to particular ecclesiastical roles, ritual functions, and religious orders. In traditionalist Jewish culture, the differential treatment of men and women puts considerable pressure on any ambiguities or uncertainties in gender identity. In Orthodox Jewish life, any person who does not conform to the conventional gender binary also does not fit neatly into social spaces and religious practices. Gender shapes more than Jewish marriage and family law. Orthodox social space is choreographed by informal rules and Jewish law, governing physical contact, ritual segregation, seclusion, text study, and interaction between the sexes. In religious practices, men's obligations and ritual roles differ markedly from women's. Adherents of Jewish praxis are expected to act in line with their gender identity and, accordingly, face strong incentives to resolve any uncertainties.
During the last 40 years, Jewish legal discourse has confronted new uncertainties about the assignment of gender because surgery and hormonal treatments have made it increasingly possible to modify sex organs and sexual characteristics. Specifically, rabbinic authorities have rendered opinions about two kinds of people with atypical gender situations: transsexuals and people with intersex conditions.3 While intersex births are quite rare, they pose pre- cisely the kind of dilemma that engenders rabbinic decision-making. …