The Halacha of sex and gender: The Jewish view on the Imane Khelif 'controversy'

On August 1, a boxing match in the 2024 Paris Olympics’ women’s 66 kg. division sent shockwaves throughout the world. Algerian hopeful Imane Khelif took on Italy’s Angela Carini. After 46 seconds, Carini forfeited the bout after receiving a punch in the face. The blow, she claimed, was too strong, stronger than any she had ever taken in her over 100 bouts as a boxer, and Khelif should never have been allowed to compete.

The resulting controversy spiraled out of control, with people claiming that the Algerian boxer was a transwoman assigned male at birth, further adding fuel to the fire over the panic surrounding transgender athletes.

This debate isn’t what we’re discussing today. Khelif is, without question, a woman – and that is something that nobody with insider knowledge of the situation is disputing. But the question is whether she has some other difference – specifically, an atypical chromosomal profile, giving her an XY (or other non-XX) chromosome makeup.

Women normally have two X chromosomes while men have an X and a Y, but sometimes women can have chromosomal disorders that also give them XY – or something else, like just X, or XXY.

There is no concrete evidence for this one way or the other, because while the International Boxing Association did claim to have tested Khelif and determined she had an XY chromosome, the test’s veracity has been called into question, and has been disregarded by the International Olympic Committee, which also disassociated with the IBA.

But this is also not an isolated incident. Plenty of women (and men) have inherent and natural health conditions, such as chromosomal or hormonal differences, that result in increased testosterone production. Many argue that this alone is sufficient grounds to disqualify them from female sports.

In other words, they claim that, in a category restricted for women, these women can’t compete.

This debate isn’t solely restricted to the realm of sports and politics. In fact, it’s something rabbis have been rigorously debating for thousands of years.

Would Jewish law see Imane Khelif as a woman? The short answer is yes. The long answer is that it’s very, very complicated, builds upon centuries of halachic debate, and has yet to be conclusively answered. It is also the focus of new conversations in the rabbinic world that are still in their infancy.

So with that, The Jerusalem Post Magazine is taking a deep dive into the Halacha of gender and biological sex.

Judaism and biological sexes: all six of them

It is a common misconception that religious Orthodoxy in all faiths see only a strict binary when it comes to biological sex – which refers to someone’s anatomy, whereas gender refers to their social identity. The two are sometimes related but are distinct from one another.

With Judaism, that isn’t true. In fact, the Talmud specifically lists six or seven different sexes.

They are as follows:

• Zachar, meaning a pointed sword and most likely intended to refer to male genitalia, it is commonly used to mean “male.”
• Nekevah, meaning a crevice, most likely referring to the opening of female genitalia. It is commonly used to mean “female.”
• Androgynos, meaning someone who has both male and female sex traits. The Talmud notes it is someone with male genitalia as well as some sex traits associated with women. Notably, this word originally comes from Greek, rather than Hebrew like the others, and is a cognate of the modern “androgynous,” “andro” meaning man and “gyné” meaning woman.
• Tumtum (pronounced TOOM-toom), meaning neither male nor female, with the genitalia and other sexual characteristics being impossible to determine. It comes from the word tum, which means secret or hidden.
• Ay’lonit, meaning someone who was assigned female at birth but over time, develops male sex traits. Many often believe that to be an ay’lonit, one must also be infertile. The term likely comes from the word ay’l, which means strong or ram.
• Saris, (literally “castrated”) meaning someone who was assigned male at birth but over time, shows female sex traits – the opposite of ay’lonit. In other words, a man who either lacks genitalia or whose genitals are very small. The term itself means “uproot.” There are two categories of saris: saris chamah (literally “warm,” referring to fever or the sun), meaning one who is naturally born like this, and saris adam (person) meaning one who is made to be this by human intervention, such as eunuchs who were castrated.

Throughout Jewish history, however, the rabbis have often found it very difficult to definitively identify someone as an androgynos or a tumtum, having had (and continuing to hold) differing opinions about the nuance of each of these terms. However, the Talmud is more explicit, going into graphic detail about exactly how to identify them.

Sex identity and the commandments

Part of the issue has to do with the gendered nature of many mitzvot (commandments). In this regard, the rabbis of old proved to be rather focused on the nuances of these sex categories.

“Rabbis seemed to be obsessed with androgynos, and you really have to wonder why,” Rabbi Ysoschar Katz of Yeshiva Chovevei Torah explained to the Magazine. “It’s brought up with every gender-based mitzvah. They always need to ask whether someone who is androgynos would be required to keep this mitzvah.”

For example, the commandment to eat in a sukkah during Sukkot is technically only obligatory for men and not women. However, according to the legal compendium Mishna Torah of the Rambam (Maimonides), androgynos and tumtum are also required to eat in it based on doubt over their gender.

In the Mishna, the rabbis say that androgynos are required to keep male obligations as well as female ones. For instance, they are required to keep all male mitzvot, but are also required to follow rules of yichud (not being with a person of any other sex to whom they’re not married) and niddah (rules surrounding menstruation).

But when is sex defined? The answer is often, but not always, during puberty. This is because a child, being below bar/bat mitzvah age, doesn’t have any obligation for mitzvot. The age of obligation is the point when defining someone’s sex becomes really crucial, because their sex determines their obligations – as well as their socially expected role – in a traditional Jewish lifestyle.

It’s also tricky to determine a child’s biological sex based on the Talmudic descriptions thereof. If a child is born with female sex organs, for instance, it remains to be seen whether they would be infertile and develop further male sex traits through puberty.

But ultimately, these are all relatively minor issues when it comes to defining sex. The crux of the matter relates to sex and marriage – the basis for what some consider to be the first mitzvah in the Torah, pru u’rvu, the mitzvah to have children.

Sex identity and marriage

Same-sex marriage is prohibited in Orthodox rabbinic Judaism, and homosexual intercourse between two men was a prohibition that was long considered to be punishable by death. The morality of such designations is a discussion for a different forum, however. More relevant is the following question: How can someone who is neither male nor female get married according to Jewish law, and to whom?

“That’s the million dollar question,” Katz explained. “When we talk about gender in Halacha, we talk about high-level issues and low-level issues. But the real test is marriage – who would they marry and when would it be considered gay sex?

“If we legally determine that they’re a male but they have a vagina and have vaginal intercourse with another man, would that be considered homosexual sex?” he asked. “It depends on whether you consider the body part to be male or female, or if you consider homosexual sex as being anything other than anal sex.”

The case of someone like Imane Khelif is one that is purely hypothetical, since she isn’t Jewish and is, presumably, female by halachic definitions.

But when it comes to intersex individuals, the situation is a lot more complicated.

Gender reassignment surgery

How does Halacha rule on intersex individuals and gender-reassignment surgery? When it comes to someone who was born with anatomy that doesn’t fit neatly into “male” or “female,” the situation is a lot more complicated.

For most of Jewish history, rabbis would often rule on cases like this based entirely on genitalia and secondary sex organs.

We can see this in the Mishna Torah’s description of a tumtum. A case is discussed where someone’s sex organs are not visible. The Rambam rules that if the organ ends up revealed somehow, whether through accident or surgery, then the individual’s gender would be (re)determined accordingly.

“The assumption of Halacha is that genitalia determines gender,” Katz explained. “It’s physiological. Halacha never considered the impact of chromosomes and hormones.” Meaning that it was based on sex, not gender.

In the past several decades, the most notable ruling on the subject was from Rabbi Eliezer Waldenberg, the Tzitz Eliezer, a Jerusalem legal authority (posek) and judge (dayan) renowned as a leading authority on medical Halacha. Among his rulings was a 1970 case about a baby born intersex. The baby had female genitalia, but with a testicle internally, as well as genetic testing indicating that the child was a male.

Surgery would be possible to remove the testicle and allow the child to be raised female, but is the surgery even permissible? Would it not be gender reassignment surgery? Or perhaps even castration, forbidden by Halacha?

Waldenberg’s answer was simple: The surgery is permitted. He gave several reasons for his decision.

• External genitalia is what determines gender in Halacha, so if the internal testicle is removed, all that would matter is that the child has external female sex organs.
• The child would already be considered female, not androgynos, due to the above-mentioned reasons. As such, there is no prohibition on castrating a woman.
• Even if the child was androgynos, it would still be fine since the testicle has no use, as the child lacks the full set of organs needed to eventually father a child and therefore castration isn’t relevant.
• Even if the surgery changed the child’s gender to female, it wouldn’t mean robbing the child of more halachic obligations, since it would simply assert a new halachic reality – especially if it happens before the child becomes of age (bar/bat mitzvah: 13 for a boy, 12 for a girl) when he/she would be obligated to follow mitzvot.

THIS IS similar to a ruling Waldenberg gave in 1967. And other rabbis in the past have ruled about gender transitioning, such as Rabbi Yosef Palache’s 19th-century ruling that a married couple is automatically divorced should the wife become a man, and the wife does not require a get (divorce document).

But as is always the case with Halacha, the reality of this ruling is far more complicated. For one thing, rabbis have never uniformly agreed about when someone can truly be considered androgynos. Secondly, the issue of sexual reassignment surgery is still contentious, as Halacha insists it cannot be done voluntarily. Therefore, the question is whether doctors should, or may, perform gender-affirming surgery (a contentious term in itself) without notifying the parents – something that Katz describes as “opening the ultimate can of worms.”

And what’s more, there’s still no broad halachic consensus on the matter. Waldenberg himself even apparently went back on his own ruling in another responsa in 1997, where he seemingly stated that sex-change operations have no halachic effect. The child with both male and female sex characteristics would not become halachically female upon removing the testicle; if their status before was androgynos, it would still be that way post-surgery.

Waldenberg’s ruling was also criticized by some for being allegedly based on discredited and outdated science. Specifically, it seemed similar to the opinions of one Dr. John Money, whose ideas had a huge impact on both the medical and halachic worlds.

MONEY HAD posited that gender identity was something highly malleable during infancy. If one were conditioned correctly from a young age, they would believe themselves to be whatever gender they were conditioned to be. He particularly made headlines due to an incident involving David Reimer, a Canadian man raised as a girl his whole life after his penis was injured in a botched circumcision. Money had suggested Reimer’s parents raise him as a girl, but by age 15 he was fully living as a male and was only attracted to women.

In the following years, Money’s theories regarding gender identity and sexuality became increasingly out of date among experts. And as such, the science that seems to be behind some of Waldenberg’s logic in his ruling seems shaky in retrospect.

Another ruling came from Rabbi Yosef Shalom Elyashiv, the former leading rabbi of non-hassidic haredi Jewry. In one responsa, he ruled that someone who developed female sexual characteristics such as breasts after hormone therapy, and who had an operation to remove their male genitalia and to give them a vagina, would not be considered male as far as sexual intercourse was concerned – meaning vaginal sex in this case would not be considered an act of homosexuality. However, the vagina would also be considered artificial here, and thus would be considered an act of “wasting seed” – that is to say, ejaculating outside the womb.

However, these halachic opinions are not universal, with the debate being far more nuanced than just the opinions of one or two rabbis. In fact, the debate is so nuanced that not everyone is even certain that Waldenberg definitively ruled on sexual reassignment surgery.

This is reflective of what seems to be the fate of any truly intersex individuals in Orthodox Judaism today: They would be stuck, with no proper halachic ruling about what to do or how they should be considered.

However, this is only true for Orthodox Judaism, which is far from the only denomination that exists.

The Conservative approach

For example, Conservative Judaism addressed the issue as far back as 2003, more than two decades ago. At the time, leading Conservative halachic authority Rabbi Meyer Rabinowitz ruled that Jewish law allows for sex (re)assignment surgery. The idea is in part rooted in Waldenberg’s ruling, and in part in the idea that gender dysphoria causes so much distress that the surgery could be seen as lifesaving (pikuach nefesh).

However, this ruling made it clear that sex (re)assignment surgery was the only way to transition one’s gender, thus still linking it to one’s genitalia. A later Conservative ruling by Rabbi Dr. Leonard Sharzer proposed that gender preference is what determines gender, rather than sex. This reflects the difference between sex and gender, which is a distinction that has gained broader acceptance among the general public in recent years, though less so among Orthodox Jews.

Speaking to the Magazine on condition of anonymity, one Jerusalem-based academic and halachic expert suggested a possible reason for this.

“Conservative Judaism, most popular in the Western world, combines democratic and liberal values with halachic reasoning. It’s possible that the ruling was informed by Western ideas of a biological sex binary [i.e. male or female], which would seem to make a clear sex determination preferable at birth – something evidenced by the long Western history of performing such surgeries,” she explained.

“One could make the case that Judaism doesn’t hold such a tradition, thanks to its acknowledgment of multiple sexes. It’s not necessarily that one of these traditions is better or worse – although intersex individuals might have opinions either way – they’re just different.”

Interestingly, this Conservative Jewish focus on the sex binary is also what Sharzer wrote as being problematic with Rabinowitz’s earlier ruling. Since it equated sex as gender, it didn’t leave any option for those who were gender nonconforming or who identified as non-binary.

Since then, non-Orthodox Jewish denominations have moved beyond the gender binary and made many more halachic rulings on the subject. Orthodox Judaism has been slower to address matters of gender and sex in their contemporary iterations, despite the importance of the halachic issue and the noted history of rabbinic discourse on the topic.

BUT THINGS get very murky when looking further into that very discourse. What has been written often includes fanciful, extreme cases, such as someone changing from man to woman and then back to man, or someone being able to both father children and give birth to them. This isn’t so out of the ordinary for the world of Halacha – which has discussed cases such as demons tying your hair into a knot to cause issues for mikveh (ritual immersion), or a baby born without an anus. However, according to Katz, it may be reflective of a deeper, problematic issue.

“Rabbis may have ruled on cases related to gender and intersex issues, but were too embarrassed to write it down,” he hypothesized. “Intersex discussions happened in the 1800s but rabbis may have seen it as awkward and it may have all been done orally.”

Is silence really the best policy?

This is reflective of another issue commonly seen in rabbinic discourse, especially among Orthodox Jews: An unwillingness to discuss anything pertaining to sex in public. Discussions are often held behind closed doors for the sake of tzniut (modesty), and for most of Jewish history, debates about women’s bodies – such as relating to niddah – were conducted exclusively by men, many of whom may not have known about the topic at hand from personal experience: having seen it or bothered to care.

This issue caused a greater push for women’s voices in Halacha, such as Rabbanit Chana Henkin, who created the position of yoetzet halacha – a halachic consultant on topics about women, for women, and by women.

“For years, I thought it was inappropriate on so many levels that there wasn’t a woman at the junction of Halacha, medicine, and women’s intimate lives,” Henkin explained to the Post in a prior interview. “It hadn’t made sense to me through the years.”

But halachic reluctance to discuss intersex issues is not only due to the lack of lived experience of poskim, or the absence of intersex individuals actually being legal decisors or in other halachic positions. It’s also affected by the fact that being intersex is considered out of the ordinary, and not a topic of everyday relevance to those not directly affected by the matter. The body of halachic literature on the topic is still in its infancy, and science is also still making strides. With the relatively slow pace of halachic development, this is not so surprising, but that doesn’t make it any less disappointing to those personally affected by the increasingly relevant topic.

In his 1997 ruling, Waldenberg said that in the case of things that are highly unusual, “silence is best.” Rabbis might feel less than confident ruling on intersex issues, and simply set them aside rather than risk their reputation by offering halachic guidance that goes against the grain.

But the problem is that intersex is far from incredibly unusual. According to clinical data cited by the UK government in 2019, gender ambiguity occurs in as many as one in 300 births. That’s no small proportion; of the 15.7 million Jews living today, around 50,000 would be intersex by that measure.

Even aside from intersex issues, there remains another aspect to the debate, one more relevant to our hypothetical case inspired by the Imane Khelif controversy: chromosomes and hormones.

Genetics, chromosomes, and hormones

As mentioned earlier, genitalia, not hormones or chromosomes, has been the defining factor in Judaism for centuries when it comes to determining sex.

There has been some debate, however, regarding the role of genetics.

Back in 1997, in an argument against Waldenberg’s ruling, two Orthodox authorities – famed professor of medicine Fred Rosner and Rabbi Moshe Tendler – argued that when genetic testing is done, it would be determinative of one’s sex, rather than needing to strictly rely on external genitalia.

“The sex determination of an infant or child with ambiguous genitalia must be based on cytological and genetic (i.e., medical) evidence, not on psychological considerations,” they wrote. “The presence of a testis is to be considered an absolute sign of maleness. A genetically male infant must not be surgically modified to permit rearing him as a female.”

This is not the same as focusing on hormones or chromosomes – something that has been neglected in Orthodox halachic discourse for a long time.

But that may be changing.

“In the past five years, there has been a discussion of whether physiology is a cause or a symptom of gender,” Katz noted. “If someone has an XY chromosome, the question is if that overrides genitalia.”

This is a debate that is still in its infancy. There have yet to be any meaningful halachic rulings among Orthodox rabbis that deal with this question.

But though the debate is still in its infancy, it has huge potential to impact a wide range of issues.

Conditions where women have both X and Y chromosomes are more common than most people realize. Hundreds of thousands of babies are born every year with conditions such as Swyer syndrome (XY gonadal dysgenesis) or complete androgen insensitivity syndrome (CAIS), though the exact figures are subject to debate. These children are ostensibly female and would be assigned as such at birth.

A 2014 study by researchers from Emory University further found that women with Y chromosomes did not react to sexual images or stimuli any differently than women with two X chromosomes.

Hormonal issues in women are even more common. A vast number of conditions can cause women to have higher levels of testosterone. Just one of those conditions, polycystic ovary syndrome (PCOS), is estimated by the World Health Organization to impact as much as 13% of all reproductive-aged women worldwide.

ORTHODOXY IS now finally starting to consider the role of chromosomes and hormones in Halacha, and it remains to be seen what will happen going forward. But what is certain is that they have the potential to impact millions of Jews worldwide, and could challenge millennia of rabbinic precedence.

So, perhaps unexpectedly, it might be fair to say that certain sports fans need to catch up on Halacha when it comes to flexibility and nuance around biological sex. ■