Legislating Away Our Own Worst Instincts
Recently, the Arkansas legislature overrode their conservative Christian governor's veto of a bill, now state law, that criminalizes gender-affirming healthcare for children. The state government, effectively, has legislated away the ability of compassionate healthcare providers to support trans kids in the Arkansas. It's a dramatic contrast to the Jewish approach, which connects back to this week's Torah portion, Tazria-Metzora, which details the laws of purification for women who have given birth to a male or female child, but gives no instructions for what to do if the physical sex of the baby is indeterminate, a conversation that leads the rabbis to develop a rather sophisticated concept of gender fluidity.
Written Format
Whenever some asks me, “what do you like about being Jewish,” or a some variation on that theme, my answer has always been the same. As a kid, this happened more often than you might think, and it was important for me to have answer that made sense to me and could be easily explained to those around me.
For me, it’s the logic at the base of Jewish life that’s so cool, no matter what denomination you identify with. Judaism is logical to the point of absurdity, but the logical reasoning that has guided Jewish thinkers through the centuries has also led to profound realizations and statements.
Last week the Arkansas legislature overrode their conservative Christian governors veto of a bill that criminalizes gender- affirming healthcare for children, effectively criminalizing the existence of trans-children in their state.
Dozens of other state legislatures are considering similar bills, to varying degrees of severity. To be honest, as someone who grew up in an Evangelical Southern town, with a ready-to-deploy defense of my own identity, I’ve never understood how conservative Christians, who themselves identify with a religion so based in love and compassion, and least on the surface, are so unable to offer that same love and compassion unconditionally, the way their own tradition teaches them to. Love the sinner, hate the sin, as they say, but in reality, the policies driven by this justification always target the sinner as much as the sin, and the abhorrent Arkansas healthcare bill is unfortunately only the latest example.
Judaism, as you might imagine, takes a different approach, even if we take the same starting position as our Christian cousins—which often includes a difficult piece of Torah text, usually from Leviticus, like what we find in this week’s Torah portion.
This week, our cycle includes a double Torah portion—Tazria-Metzorah. It’s focused on defining purity, or rather impurity, in the Israelite community—from women who’ve recently given birth to those affected by leprocy. In the opening lines of Tazria, the first of this week’s parshot, outlines the period of time a women is unclean following the birth of a male or female child.
Leviticus 12:1
The LORD spoke to Moses, saying:
Speak to the Israelite people thus: When a woman at childbirth bears a male, she shall be unclean seven days; she shall be unclean as at the time of her menstrual infirmity.— On the eighth day the flesh of his foreskin shall be circumcised.—
She shall remain in a state of blood purification for thirty-three days: she shall not touch any consecrated thing, nor enter the sanctuary until her period of purification is completed.
If she bears a female, she shall be unclean two weeks as during her menstruation, and she shall remain in a state of blood purification for sixty-six days.
On the completion of her period of purification, for either son or daughter, she shall bring to the priest, at the entrance of the Tent of Meeting, a lamb in its first year for a burnt offering, and a pigeon or a turtledove for a sin offering.
He shall offer it before the LORD and make expiation on her behalf; she shall then be clean from her flow of blood. Such are the rituals concerning her who bears a child, male or female.
There are two topics that often sparked gender debate among the rabbis of the Talmud, purification after childbirth and inheritance. A baby’s sex is defined by its physical appearance at birth, and babies are traditionally labeled male or female, as they are in the Torah this week. Of course, it’s not always that easy to tell, and that’s always been the case.
The rabbis of the Talmud faced the challenge of determining the physical sex of babies routinely enough that the idea of a binary gender system was illogical to them, it didn’t align with the world they saw around them. They learned instead to interpret the binary system presented in the Torah more elegantly, and in response Jewish law developed a rather sophisticated concept of gender fluidity, especially for the time, one with six separate definitions of gender that aren’t tied exclusively to physical appearance at birth, and aren’t assumed to be constant throughout a person’s life.
For the purposes of this d’var, there’s one category I want to focus on—tumtumin. A tumtum, in Jewish law, is a person whose physical sex is hidden or unrecognizable. This is distinct from people whose physical sex appears both male and female, with both sets of sex organs.
The rabbis of the Talmud argue that Abraham and Sarah were originally tumtumin, and that sexual organs were fashioned for them, which is a pretty powerful, if often overlooked, inclusion of queer identity at the heart of Judaism’s origin story.
Yevamot 64a
Rabbi Ami said: Abraham and Sarah were originally tumtumin, people whose sexual organs are concealed and not functional, as it is stated: “Look to the rockfrom where you were hewn, and to the hole of the pit from where you were dug” (Isaiah 51:1), and it is written in the next verse: “Look to Abraham your father and to Sarah who bore you” (Isaiah 51:2), which indicates that sexual organs were fashioned for them, signified by the words hewn and dug, over the course of time.
The rabbis, though, don’t stop there. Because it’s not enough to create space for someone to exist. It’s not even enough to say that we’re all created in G-d’s image, although we are, and the rabbis do point this out. For better or worse we have to create barriers to the way we, or others in our midst, might react to someone else’s honest efforts to simply existence.
But first, a refresher, about a piece of Jewish law that comes much later in the Torah, The stubborn and rebellious son. It’s a concept offered by Moses during his long speech to the Israelites just before his death.
Deuteronomy 21:18
If a man has a wayward and defiant son, who does not heed his father or mother and does not obey them even after they discipline him,
his father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community.
They shall say to the elders of his town, “This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard.”
Thereupon the men of his town shall stone him to death. Thus you will sweep out evil from your midst: all Israel will hear and be afraid.
At first glance, it’s a pretty draconian response to child discipline, but it’s a good example of what I’m talking about, because our ability to mete out this extreme punishment against stubborn and rebellious sons is almost entirely legislated away in Jewish law by the rabbis, who narrow the window of when someone can be a stubborn a rebellious son.
Sanhedrin 68b:
From when he grows two pubic hairs, which are a sign of puberty and from which time he is considered an adult, until he has grown a beard around. The reference here is to the lower beard surrounding his genitals, and not the upper beard, i.e., his facial hair, but the Sages spoke in euphemistic terms.
As it is stated: “If a man has a stubborn and rebellious son” (Deuteronomy 21:18), which indicates that the penalty for rebelliousness is imposed upon a son, but not upon a daughter; and upon a son, but not upon a fully grown man. A minor under the age of thirteen is exempt from the penalty imposed upon a stubborn and rebellious son, because he has not yet reached the age of inclusion in mitzvot.
But what if the baby’s sex is hidden, or unclear, and they were labeled a tumtum?
Bava Batra 126b
Rav Naḥman bar Yitzḥak says: A tumtum who was found to be male is also not judged as a stubborn and rebellious son, as the verse states: “If there will be [born] to a man a stubborn and rebellious son” (Deuteronomy 21:18), which is interpreted to mean that one is not judged in this manner unless he is recognized as a son from the moment of his coming into being.
It’s not hard to imagine a situation where a child struggling to understand their own gender identity will act in a way that seems stubborn, rebellious, and wayward, to their parents. That’s why there’s so much power in Jewish tradition saying that a person whose gender is fluid, whose physical sex may be indeterminate, or may even change over time as our tradition says Abraham and Sarah’s did, cannot be labelled a stubborn and rebellious son, meaning they can’t be dragged into the public square to be shamed and stoned to death by the town elders.
Which, of course, is basically what the state elders of Arkansas did last week, when they criminalized gender-affirming healthcare for trans kids. Sure, the legislation doesn’t target the kids specifically, love the sinner and hate these sin, right? Instead, it targets those who are helping and supporting these kids, sending a not so subtle message that the being trans is wrong and even criminal.
So here’s a radical thought, what if instead of legislating away what we perceive as sin, we chose instead to legislate away our own worst instincts, including our ability to react to our personal perception that someone else is sinning.
Shabbat Shalom
