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The Establishment of Maternity & Paternity in Jewish and American Law
Michael J. Broyde


Sex Change Operations and Their Effect on Marital Status: A Brief Comparison

Sex reassignment surgery is another example of the legal difficulties certain medical, psychological, and technical advances have posed to legal systems. Do systems have the ability to redefine such basic statuses as male and female, and how do these changes affect pre-existing relationships which posit one member of each sex? Although a relatively recent phenomenon,264 the sexual status of a person who has undergone a sex change operation has been widely discussed, both in American and in Jewish law. One of the recent American cases to discuss the status of such persons is a New Jersey case, M. T. v. J. T.,265 where a wife filed a complaint for support and maintenance against her now-separated husband. In defense to the action for nonsupport, the husband asserted that his wife was a male and hence their marriage was void. He maintained that his wife was a former male who had "successfully" undergone sex reassignment surgery before the marriage. However, he maintained, the law still categorized "her" as a male. Thus, since New Jersey does not recognize marriages between two members of the same sex, the marriage was void. The New Jersey Superior Court ruled that "where a transsexual was born with physical characteristics of a male, but successful sex reassignment surgery harmonized her gender and genitalia so that she became a woman, such transsexual thereby became a member of the female sex for marital purposes and subsequent marriage to a male was not void."266 The court ruled this way notwithstanding the undisputed fact that this individual was still genetically a male, though physiologically a female. The New York Supreme Court agreed with this view in ruling in the famous case of Richards v. United States Tennis Association.267 The court ruled that the law must reflect the successful sex reassignment surgery when it is done properly and for an appropriate medical reason.

One court has disagreed with this analysis. In In Re Declaratory Relief for Ladrach,268 an Ohio probate judge ruled that Ohio law does not permit a transsexual, after surgery, to obtain a marriage license reflecting his new sex. The court ruled that genetic factors dominate in determining sexual status. The court was heavily influenced by British case law which also adopted this standard.269 The court also mischaracterized the law in New York state, apparently unaware of the Richards case.270

A number of state courts have commented on a related issue -- the right of a transsexual to change his or her birth certificate to list his assigned sex. A number of state courts have refused to permit this;271 although, most do.272 In 1975, a federal district court ordered that cause must be shown before a state could refuse to change the sex on the birth certificate of a person who has undergone a sex change operation.273

The marital status of one who has undergone transsexual surgery while married is without case law in the United States. The basic question is whether undergoing transsexual surgery is merely grounds for divorce or annulment, or is it actually the termination of the legal marriage as it stands, without the need for state intervention. This author believes that in states like New York, where marriage by people of the same sex is neither explicitly illegal or legal,274 the marriage of a person who has undergone transsexual surgery is merely voidable. Thus, while it is well established that people of the same sex cannot enter into marriages in New York, once a valid marriage license has been issued to a man and a woman, further actions removing one of the them from the classification of those capable of being issued a marriage license, is not in itself grounds for voiding of the marriage.

An analogy to this type of situation is where the status of one of the parties in a marriage changes to one in which he or she could not contract to enter into a marriage. For example, if two people are married and one of them suddenly becomes insane, the marriage is not legally void upon the insanity of that party. The case of a transsexual whose sexual status has changed and to whom a valid marriage license could no longer be issued is identical to this case. Since the couple was lawfully married, the inability to enter into the marriage at this time would not void the marriage. Additionally, void marriages must be void at the time of their inception, which is not true in the case of a transsexual who reassigns his sex after marriage. Hence, a unilateral act by one of the parties after commencement of the marriage cannot make that marriage void.

According to Jewish law, the removal of sexual organs is prohibited; hence sex reassignment surgery is prohibited according to biblical law for men;275 and it is disputable whether the removal of sexual organs is a biblical or rabbinic prohibition for women.276 Although the technical prohibition of removing sexual organs applies only in the context of physical removal, a number of authorities note that undergoing hormonal treatment to give the appearance of being a member of the opposite sex violates the biblical commandment in Deuteronomy which states that "A woman shall not wear that which pertains to a man, nor shall a man put on a woman's garment."277 These commentators maintain that this prohibition against wearing the garments of the opposite sex also encompasses the attempt to develop physical appearances that are typically associated with the opposite sex.278 This prohibition has been applied in a broad variety of contexts, each within its historical parameter prohibiting conduct which resembles that which the opposite sex does.279 It seems almost intuitive that if actions designed to give the mere appearance of belonging to the wrong sex are forbidden, then actual physical changes, hormonal or surgical, are also prohibited.

The question of whether a physical operation to change one's sex accomplishes its goal, notwithstanding the prohibition, is a subject of some controversy in Jewish law. The earliest discussion concerning the sexual status of a transsexual is found in the twelfth century commentary of Ibn Ezra on Leviticus 18:22, where he, quoting Rabbenu Chananel, states that intercourse between a man and another man, in whom the sexual organs of a woman have been fashioned, constitutes a violation of the biblical prohibition of homosexuality, despite the presence of apparently female sexual organs.280 Thus, Ibn Ezra rules that sexual status cannot be changed surgically, since if this person was now legally a woman, no violations of the sodomy laws could occur. Rabbi Yosef Palachi281 is of the opinion that no divorce is necessary for the dissolution of a marriage contracted prior to transsexual surgery.282 This position is, at least on its face, contrary to Ibn Ezra's since it implies that the operation successfully turned the husband into a female.

In a recent responsum of the Tzitz Eliezer, Rabbi Waldenberg claims that one who undergoes transsexual surgery assumes the status of the sex to which he is now surgically assigned.283 Rabbi Waldenberg, apparently adopting the intellectual analysis of Rabbi Palachi, states that the transsexual surgery establishes a new person with a new sexual status. Hence, no bill of divorce is necessary in order to sever the previous marriage. Rabbi Waldenberg compares this situation to that of the removal of the prophet Elijah from the earth.284 He states that just as the wife of a person who has been removed from the earth has had her marriage terminated, so too does a wife of a person who has had his sex reassigned. It is the equivalent of death which also terminates a marriage.285 This understanding of the rules for terminating a marriage is based upon the position taken by the Minchat Chinuch,286 that if a person no longer can enter into a valid marriage with anybody, that person's prior marriages are terminated.

Some commentators have attacked this responsum, arguing that it implies that an act which is prohibited in Jewish law, and which the law considers merely to be an act of self-mutilation, terminates a marriage duly entered into without the consent, or even knowledge, of the other spouse. These authorities maintain that transsexual surgery has no effect on one's sexual status on Jewish law.287 They concede that such a person could no longer enter into a marriage as a male, due to his inability to function sexually as one. However, they strongly deny that he could enter into a marriage as a female, as Rabbi Waldenberg implies.288 This author believes that the second position is correct -- primarily because Jewish law as codified appears not to accept the position that one who cannot enter into a marriage has his current marriage terminated,289 and this is in accordance with Rabbenu Chananel quoted above.290

In the extremely new topic of sex reassignment surgery, American law remains true to its analytic premise. The law is given the right to reassign sexual identity, just as it is given the right to reassign parental status. Although there is a vigorous opinion to the contrary, this author believes that Jewish law also remains consistent with its own premise, and maintains that sexual status cannot be legally changed once correctly established.

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