While the rights of religious minorities have been slowly evolving within Western countries’ legal systems for at least a century, the issue of transgender rights is a more recent — and therefore controversial — phenomenon.
A new push for transgender rights to be incorporated into law could, according to some expert observers, bring about a clash with the needs of the UK’s religious communities.
Since 2004, the Gender Recognition Act has governed how transgender people can have their identity legally recognised. Currently, they must undergo a long process to ‘prove’ their gender identity, which includes living in the acquired sex for two years and securing validation from a medical professional who specialises in gender dysphoria.
As it stands, this law presents a problem for Britain’s Orthodox community because, for many in that community, any transgender person, pre- or post-operation, breaks Jewish law when he or she enter single-sex spaces, such as public toilets, swimming pools or prisons. In Orthodox Judaism, the biological sex you were born is the sex you will always be.
Dayan YY Lichtenstein, Chief Justice of the Federation of Synagogues in London and its Halachic authority, makes the position clear: “I can state categorically that Jewish law does not recognise any change in sex of male to female or female to male under any circumstances.”
However, the government is now seeking the public’s view on how best to expand transgender rights via a reform of the Gender Recognition Act, with the deadline for the consultation on October 19.
In one of the proposed changes to the act, individuals could be given the right to gender “self-identification”. This would mean that a person would be allowed to declare their gender identity by themselves and be recognised as that gender, under law.
Though many point out the reforms would make it easier for a transgender person to live as they wish, Professor of Law Rosa Freedman, who has worked to protect minorities rights (including those who identify as LGBTIQ+) for over a decade, argues the amendment could mean, for example, a deluge of trans-identifying people who have not undergone any transition process getting access to single-sex spaces.
It would, says Prof Freedman, in certain contexts amount to the prioritisation of the rights of transgender people above those of religious minorities and women, which are protected in the Equality Act.
Prof Freedman points to the City of London’s decision in 2017 to allow transgender women to bathe in Hampstead Heath Ladies’ Pond as an example. “As well as Jewish women, I know Muslim women who will not use the ponds ever again. It totally undermines religious ideology,” she said. The Jewish law of modesty requires Jews to cover themselves in front of the opposite sex, with the spouse excepted. Islam has similar laws.
Prof Freedman, a specialist in human rights law, adds: “I fundamentally believe that everyone has human rights. That includes every Jew and every transgender person, it doesn’t matter what your protected characteristics are but everyone deserves human rights by virtue of being born human.”
But, she says, it is important to remember that “currently gender identity is not a protected character under law but religious identity is. The legal amendments could elevate the rights of a group that do not have protected characteristics over the rights of those of those who do. It is wrong to guarantee the protection of one group at the expense of another.”
Prof Freedman makes a distinction between sex and gender, and has received abusive comments from the transgender community for taking that position.
“Being a woman is about sex and biology, not about gender,” she says. “Gender is a social construct and sex is a biological fact. If people want to change their gender, I will fight for their right to do so. In my opinion, transgender women are transgender women. You can change your gender but you can’t change your sex. Even if you have genital reconstructive surgery you will always be the sex you were born.”
She adds that there is “some flexibility within Jewish law for those who have fully transitioned (a transsexual) as compared with those who have not surgically transitioned (a transgender person), where there would be no flexibility.”
But human rights advocate Peter Tatchell, who works with LGBTIQ+, Jewish campaign group Rainbow Jews, has a different view: “Biological sex and gender are about more than just genitals. They also include chromosomes, hormones and mental states. Newly emergent research suggests that sex hormones and brain structures are different in transgender people compared to non-trans people. This indicates that these issues are much more complex than simply whether someone was born with certain genitalia.
“I would hope that Orthodox believers would look at the scientific research and be guided by human rights principles of non-discrimination.”
Many transgender women would contend that as they identify as female, they should be permitted to occupy female-only spaces. Elli Tikvah Sarah, rabbi of Brighton and Hove Progressive Synagogue, who is a lesbian and identifies as non-binary — not exclusively masculine or feminine — says: “If you’ve gone through all the surgeries, you should be accepted as your desired sex. Those who have clearly gone through surgery are taking hormones, those hormones are changing their bodies. This means the re are now physiological changes as a result of taking one hormone in favour of another.
“We have to find a way of accommodating people, we must be more nuanced, more sophisticated. The only way we can get through this is through education.
“There is a big binary tendency in Jewish thinking. What it comes down to is that there is one humanity — we are all made in the image of God. It is crude to say everything is binary. In the Talmud, rabbis recognise that not everyone fits into a male/female binary — there is reference to intersex individuals.”
Executive director of KeshetUK, Dalia Fleming, an organisation that works with the LGBTIQ+ Jewish community, agrees: “Jewish communities have a duty to make sure that transgender people feel safe and included, free from discrimination and fear, which includes being recognised by the gender in which they identify. Reforming the Gender Recognition Act will markedly improve the lives of transgender people.”
But the first openly transgender professor at an Orthodox Synagogue in New York City, Joy Ladin, says she understands where both sides are coming from.
Speaking about the issue of entering single-sex areas, Prof Ladin says that despite “identifying as female, which is as crucial for me as anyone that was born a woman, I personally wouldn’t go into a space like that, both because I wouldn’t want to offend anyone and because I would feel hurt if I was rejected.
“I would understand if they got out of the water. In terms of infringing on rights, if it was not a religious or a privately-owned space, I wouldn’t feel I was infringing on anyone’s rights, but I would understand that my gender identification would not necessary be accepted by others. For me the question is less about rights than about respect: I am obligated to be respectful toward others, and others are obligated to be respectful toward me. When I feel that those lines of obligation aren’t clear, I don’t feel safe, so I personally tend to stay away.”
Orthodox Rabbi Mike Moskowitz, the resident scholar for Trans and Queer Jewish studies at Congregation Beit Simchat Torah in New York, argues that the Orthodox position on transgender issues “is like every aspect of Jewish law, in that there is rarely a universal consensus difference.”
He says Jews “have a responsibility to be inclusive and affirming of others’ existence.
“I would argue the premise of Halacha is that we are obligated to affirm gender because we have a responsibility to each other. We are all G-d’s children.
“As a religious person, I believe that the Torah was given to us as a nation and thus speaks to every generation.
“This means that God spoke to Moses on Mount Sinai about the laws pertaining transgender Jews. To deny that is to deny the most basic principle of the Torah — that it is eternal.”