It isn’t a perfect democracy. It isn’t a perfect theocracy either. Which form of rule appears more perfect probably has more to do with one’s own religious orientation than fact. But the modern State of Israel continues to be a land of struggle, not only between Jew and Arab, but also the Haredi (ultra-Orthodox partisans) and less Orthodox partisans that range from purely secular Jews to Conservatives and even other Orthodox Jews.

It’s a tension that’s realizing a crescendo and its outcome may have a profound impact upon human rights: whether those liberties that typified Israel’s early struggles may prevail or burn as if a sacrifice to religious intolerance. That potentially impacts the rights of transpeople who themselves have been sacrificed at various times throughout history upon false altars of fear and fanaticism, regardless of nation.

 

SHADES OF TENSION AT THE KOTEL

Consider the case of Kay Long, a Tel Aviv drag queen and stylist who in 2015 sought to insert a note at the Kotel, also known as the Western Wall. She understood that the site was for everyone. But the “Modesty Police” refused her entry to either the women’s or men’s sections.  Her case wasn’t the only one, either. “Modesty Police” are volunteers from the Orthodox community who have no official connection with the Kotel. They’re simply enforcers of Orthodox religious standards of dress and deportment.¹

It was an incident that contributed to growing dissonance among Israeli citizens. A year later, the Prime Minister’s cabinet, despite opposition from Heredi who controlled site access and elites describing themselves as “religious nationalists,” voted to allow non-Orthodox Jewish prayer at the Kotel and consequently, to allow men and women to pray together. This was a move by which Prime Minister Benjamin Netanyahu hoped to secure greater support among other branches of Judaism, namely Conservative, Reform, Renewal, and Reconstructionist movements.²

Access to the Kotel is only the beginning of trans rights issues, and Israel, like other countries, has addressed them as part of a greater LGBT rights issue. On July 15, 2015, a Haredi attacker stabbed 6 individuals at Jerusalem Gay Pride.  The following February 23, the Knesset proclaimed the day, “Israel’s LGBT Rights Day.” Prime Minister Netanyahu spoke at the Knesset on the occasion, asserting , “every person is created in the image of God.” However the Knesset failed to pass important legislation for LGBT rights including a ban on “conversion therapy.”³

 

THE ORTHODOX STRONGHOLD

The gesture seemed more glitter than substance, something that has often embodied Israeli governance. Israel’s Declaration of Independence asserted:

“Accordingly we, members of the People’s Council, representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement, are here assembled on the day of the termination of the British Mandate over Eretz-Israel [the Land of Israel] and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel.

“We declare that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel.” The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.”⁴

Despite its clear provision that a new Constitution must be adopted by the Elected Constituent Assembly by October 1 of that year, Israel never agreed upon a constitution. So it remains to this day. Instead, the continuance of the governance of Israel is based on a series of precedents. Central to the existence of the State of Israel is its Jewish identity. It comes down to a fundamental question, “What (or who) is a Jew?”  To whom has this question been entrusted? The Chief Rabbinate, operated exclusively by the Orthodox.

That meant the imposition of Orthodox standards over other branches of Judaism. For that matter, rabbis of other branches have no recognition. Consequently, only Orthodox marriages have full recognition in Israel. Not everyone who has converted to Judaism has recognition as a Jew.  While Israel was intended for the “gathering in of the exiles,” one cannot simply immigrate to Israel with the full rights of citizenship without having fully recognized Jewish status.

That poses an inherent problem for civil rights. Many of Israel’s inhabitants aren’t Jewish. The State of Israel committed to securing “complete equality of social and political rights to all inhabitants irrespective of religion, race, or sex.” But if any manner of law or treatment deviates from protecting those not recognized by the Chief Rabbinate, including one’s status as a transperson, the very notion of equality is immediately subverted.

 

THE CHIEF RABBINATE AND LIBERTY

As the Chief Rabbinate teaches, so people in government agencies follow. A recent outcry has arisen as a result of the Population and Immigration Authority ban on marital relationships of migrant workers in Israel.⁵ Clearly, it’s those whom the Chief Rabbinate consider to be Jewish who have a green light to marry. Everyone else can go home.

In 2017, a group that included Justice Minister Ayelet Shaked announced their desire to see a Haredi justice appointed to the Supreme Court. Their stated interest was one of inclusion, aimed at representing Israeli diversity and calling out discrimination against Haredi.

In turn, the Reform-based organization Hiddush declared concerning  a ruling on divorce  which had previously stood unfavorably with Rabbinic courts: “Do whatever you would like— to the equality of women’s rights, the prioritization of children’s welfare, all the principles of a 21^st century Western democracy that the Supreme Court once obligated the Rabbinic courts to adhere to… We will find a way not to interfere.”⁶

Hiddush has been highly critical of the Haredi and the Rabbinic Courts. In a September 2018 telephone survey it conducted through the Smith Polling Institute of those who voted in the 2015 elections. How many support the United Nation’s Universal Declaration of Human Rights principle of Freedom of Religion?”  The results produced a strong majority of support for the declaration and can be examined in greater detail at this link:

 

By party:

Zionist Union: over 90%

Yesh Atid: over 90%

Meretz: over 90%

Kilanu: 72%

Yisrael Beiteinu: 70%

Likud:  63%

Jewish Home: 44%⁷

 

Other demographics:

Women: 73%

Men: 64%

Secular: 86%

Unmarried couples: 76%

Traditional (not so religious): 76%

Traditional (religious): 64%

Zionist Orthodox: 30%⁸

 

Hiddush emphasized this issue most specifically as concerning marriage equality. But we might ask the question, “Is everyone even agreed upon what religious freedom consists?” Does “religious freedom” permit one to discriminate against another person in any manner simply because one’s sect dictates he must?

It may easily parallel the debate on religious freedom that exists in the United States. Not a few Americans firmly believe their version of “religious freedom” categorically overrules the rights of others, despite decades of teaching in ethics and history.

 

CRIES FOR ABOLITION

These matters have invited deep soul searching. What do the people of Israel want, a democracy or a theocracy? Hiddush led a motion many Israelis, despite Haredi objections, to call for the abolition of the Chief Rabbinate as an arm of the state.  A declaration signed by rabbis of all denominations, including the Orthodox chairperson of the Executive Committee of Ruach Hiddush was published on December 8, 2018.⁹

As huge as such a declaration is, the idea of abolishing the Chief Rabbinate isn’t novel to Ruach Hiddush.  Rabbi Michael Knopf called for abolition in early 2013 and he wasn’t a signatory to the Ruach Hiddush document.¹⁰ David Golinkin, also not a signatory to the document, called for abolition later that year.¹¹ Ben Herman of the Times of Israel, wrote an op-ed calling for abolition in the middle of 2017.¹² What we’re seeing is a popular groundswell of sentiment against the Chief Rabbinate.

Hiddush also has its critics. Rabbi Steven Pruzansky criticized them and other Liberals, claiming they just  “strenuously object” to the Chief Rabbinates fidelity to halakha (traditional practice), commitment to Jewish identity and character  being preserved, and support of Torah, aside from calls for the liberties of those whose connections with Torah are little or none. He most vehemently singled out the Reform Movement, claiming it “failed on the American scene” and wants to “export” its “failures” to Israel.¹³

It’s a set of charges not far removed from common charges against Liberal Christians by American Evangelicals. It’s a position that vigorously defends traditional worship and mores against an “enemy” it perceives in other modes of religious identity and practice. It also stands against evidences like surveys.

A survey conducted earlier in 2018 by Hiddush showed immense discontent in Israeli society concerning their government (76% dissatisfied compared to 24% satisfied) and how poor public confidence exists with the Chief Rabbinate. The full report can be accessed through this link:

 

No public institution trusted: 39%

Supreme Court trusted: 35%

Rabbinical Courts: 9%

Government generally: 7%

The Knesset: 5%

The Chief Rabbinate: 5%¹⁴

 

Interestingly, trust in the Chief Rabbinate runs about par with that of the Knesset, but nobody appears to be calling for abolition of the Knesset. There is a difference, of course. Members of the Knesset are elected officials. Members of the Chief Rabbinate aren’t.

Another survey in 2013 conducted by Transparency International found that 73% of Israelis consider its religious bodies to range from “corrupt” to “extremely corrupt”. Such perceptions seem to stem from publicized accusations against Askenazi Chief Rabbi Yona Metzger, alleging decisions and activities in exchange for donations, conversions, rabbinical appointments, and ties to tycoons.¹⁵

 

THE TIDE OF TRANS RIGHTS

Orthodox control of the Chief Rabbinate impact trans rights precisely because the Orthodox are the only branch in Judaism that have not widely declared acceptance of transpeople. Orthodox Jews worldwide have been divided concerning us. Rabbi Ephraim Mirvis, Chief Rabbi of the United Kingdom along with KeshetUK, released a conciliatory report concerning LGBT children in its schools, titled The Wellbeing of LGBT+ Pupils.¹⁶

Rabbi Mirvis’ report comes at a time in which trans rights and the role of the NHS are hotly debated in the United Kingdom, arriving a year after a corresponding set of recommendations by TransgenderTrend that has been widely criticized by trans activists.¹⁷

In other parts of the world, plenty of Orthodox Jews don’t want to talk about transpeople. They don’t want us in their shuls. Most Orthodox Jews who come out as trans don’t usually remain in the Orthodox fold. Issues over halakha abound. Which side of the mechitzah (the barrier separating men from women) should such a person worship? How should converts be received or should they be received as converts at all?¹⁸

Some condemn anything that crosses gender lines whatsoever. Sefardic Chief Rabbi Shlomo Amar of Jerusalem vehemently opposed mixed-gender space at the Kotel, saying those who petitioned for this space were “wicked” people committing “every injustice in the world against the Torah” and compared them to Holocaust deniers.¹⁹

In such a position, people like Kay Long can continue to stay away from the Kotel because it really isn’t a place for all people. Rabbi Amar’s position opposes the stated position of the Reform Movement accepting transpeople in 2015.²⁰ Conservative rabbis likewise affirmed trans rights in June 2016.²¹ Reconstructionists declared themselves to be the first of all to accept LGBTQ peoples.²²

But Orthodox positions on sex reassignment have been mixed. Orthodox congregations rejecting transpeople cite Levitical rules: “You shall not offer to the LORD anything (with testes) bruised or crushed or torn out”²³, also “You shall not make gashes in your flesh for the dead or incise any marks on yourselves.”²⁴ However, these prohibitions never extended to surgery for other purposes, cosmetic or otherwise.

It’s a position reflected in the attitude of Rabbi Ari Shvat who was asked whether a transman should be counted in a minyan (a quorum of males required for Torah study). He said such is nullified in counting for a minyan on “the basis of mental incapacity.”  He further stated concerning transpeople generally:

 

“Firstly, I might strongly suggest to you (or whomever asked you this question) seeking professional help, for the person apparently has a problem of self-identity, and self-esteem. Making external changes, and thinking that ‘the grass is always greener on the other side’, is an unfortunate guarantee for constant unhappiness… If one is already Jewish, I strongly suggest their stopping to take the opposite sex hormones, and try and revert as soon and as much as possible to dress and act the way they were born, and seek the help of a religious professional.”²⁵

 

It’s an insulting position of pathologization that’s close to Evangelical and Catholic justifications for “conversion therapy.” But where any religious body so seeks to impeach the mental capacity of transpeople simply because they happen to be trans, other actions of overt discrimination are likewise “justified” in other areas of society. In July 2018 Ayalon Insurance refused to refund the mastectomy of a transman, stating that his policy does not cover “mental disorders” or “psychiatric treatments.”²⁶

 

ISRAEL MUST DECIDE

So pervasive is the control of the Chief Rabbinate that Israelis at time struggle with a real tension between Jewish identity and the necessity of liberty in a democracy. Consequently, the rights of trans and intersex peoples can too easily be ignored or abridged. It could take the form of barring access to the Kotel. It could also take the form of denying any portion of religious practice.

But in its grosser aspects, the rights of citizenship can also be abridged for trans, intersex, and gender non-conforming peoples including the right to immigrate, marry, or even potentially the right to vote. We have not yet seen how far the Chief Rabbinate can go before Israelis say enough is enough. Perhaps, if we believe Ruach Hiddush and others, that time may come sooner than we think.

___________________________

REFERENCES:

Featured image: The Chief Rabbinate in 1959 oversees their agenda (Wikimedia Commons) That agenda has included halakhically correct practice with respect to the Kotel or Western Wall (Florian Prischl, Flickr). Though none of the rabbis have their backs turned toward the Holy of Holies beneath the Dome of the Rock, the presence of the religious jealousy that surrounds them can be felt as if something bigger than life.

1. Melanie Lidman. “Transgendered woman barred from Western Wall prayer” Times of Israel (January 7, 2015, accessed December 28, 2018) http://www.timesofisrael.com/transgendered-woman-barred-from-western-wall-prayer/?fb_comment_id=661520827289699_661816883926760.
2. Daniel Estrin. “Israel allows both genders to pray together at Western Wall” Independent (January 31, 2016, accessed December 28, 2018) https://www.independent.co.uk/news/world/middle-east/israel-allows-both-genders-to-pray-together-at-western-wall-a6845366.html.
3. (n.a.) “Israel Society & Culture: LGBT Rights in Israel” Jewish Virtual Library (website accessed December 28, 2018) https://www.jewishvirtuallibrary.org/lgbt-rights-in-israel-jewish-virtual-library.
4. “The Declaration of the Establishment of the State of Israel” Official Gazette: (Number 1; Tel Aviv, 5 Iyar 5708, May 14, 1948) Page 1.
5. Lee Yaron. “In Court, Israel Defends Ban on Relationships Between Foreign Workers” Haaretz (December 27, 2018, accessed December 30, 2018) https://www.haaretz.com/israel-news/.premium-in-court-israel-defends-ban-on-relationships-between-foreign-workers-1.6785834.
6. Sagi Agmon. “Shaked won: The ‘Jewish’ has beaten the ‘democratic’” Hiddush (November 22, 2018, accessed December 30, 2018) http://hiddush.org/article-23289-0-Shaked_won_The_Jewish_has_beaten_the_democratic.aspx.
7. (n.a.) “International Human Rights Day survey: Israelis support marriage freedom” Hiddush (September 12, 2018, accessed December 30, 2018) http://hiddush.org/article-23291-0-International_Human_Rights_Day_survey_Israelis_support_marriage_freedom.aspx.
8. Ibid.
9. Ruach Hiddush. “As rabbis of all denominations, we say it is time to abolish Israel’s Chief Rabbinate” JTA (December 6, 2018, accessed December 28, 2018) https://www.jta.org/2018/12/06/opinion/rabbis-denominations-say-time-abolish-israels-chief-rabbinate.
10. Rabbi Michael Knopf “Abolish Israel’s Chief Rabbinate” Haaretz (January 27,m 2018, accessed December 28, 2018) https://www.haaretz.com/jewish/.premium-opinion-abolish-the-chief-rabbinate-1.5226506.
11. David Golinkin. “Abolish the Chief Rabbinate” J-Post (November 28, 2013, accessed December 28, 2018) https://www.jpost.com/Jerusalem-Report/Israel/Abolish-the-Chief-Rabbinate-333324.
12. Ben Herman. “It’s time to abolish the Chief Rabbinate of Israel” Times of Israel (July 10, 2017, accessed December 28, 2018) https://blogs.timesofisrael.com/its-time-to-abolish-the-chief-rabbinate-of-israel/.
13. Rabbi Steven Pruzansky. “The suggestion that the Chief Rabbinate be abolished engendered the idea of abolishing something else” Israel National News (December 14, 2018, accessed December 28, 2018) http://www.israelnationalnews.com/Articles/Article.aspx/23155.
14. (n.a.) “2018 Israel Religion & State Index” Hiddush (September 5, 2018, accessed December 28, 2018) http://hiddush.org/article-23276-0-2018_Israel_Religion__State_Index.aspx.
15. Annie Slemrod. “Corruption charges plague Israel’s rabbinate” Al Jazeera (May 9, 2014, accessed December 30, 2018) https://www.aljazeera.com/news/middleeast/2014/04/corruption-charges-plague-israel-rabbinate-2014416102627720887.html.
16. Chief Rabbi Ephraim Mirvis produced with LGBT+ Jews. The Wellbeing of LGBT+ Pupils (Report September 2018, accessed December 28, 2018) The-Wellbeing-of-LGBT-Pupils-A-Guide-for-Orthodox-Jewish-Schools.pdf.
17. Cristan Williams. “Rapid onset gender dysphoria and other myths” The Advocate (March 11, 2018, accessed December 30, 2018) https://www.transadvocate.com/rapid-onset-gender-dysphoria-and-other-myths_n_22079.htm.
18. Uriel Heilman. “Orthodox rabbis wrestle with Jewish law and transgender issues” Times of Israel (April 8, 2016, accessed December 30, 2018) https://www.timesofisrael.com/orthodox-rabbis-wrestle-with-jewish-law-and-transgender-issues/.
19. Josh Jackman. “Chief Rabbi says gender equality would be worse than Holocaust denial” Pink News (September 6, 2017, accessed December 30, 2018) https://www.pinknews.co.uk/2017/09/06/chief-rabbi-says-gender-equality-would-be-worse-than-holocaust-denial/.
20. Resolution on the Rights of Transgender and Gender Non-Conforming People (Commission on Social Action of Reform Judaism accessed December 30, 2018) https://urj.org/what-we-believe/resolutions/resolution-rights-transgender-and-gender-non-conforming-people.
21. Resolution Affirming the Rights of Transgender and Gender Non-Conforming People (Conservative Rabbinical Assembly, April 6, 2016, accessed December 30, 2018) https://www.rabbinicalassembly.org/story/resolution-affirming-rights-transgender-and-gender-non-conforming-people.
22. (n.a.) “LGBTQ Issues: Reconstructionist Judaism” (Reconstructionist Rabbinical Association declaration accessed December 30, 2018 through the Human Rights Campaign website) https://www.hrc.org/resources/stances-of-faiths-on-lgbt-issues-reconstructionist-judaism.
23. Leviticus 22:24, (n.a.) “Stances of Faiths on LGBTQ Issues: Orthodox Judaism” (Rabbinical Council of America declaration accessed December 30, 2018 through the Human Rights Campaign website) https://www.hrc.org/resources/stances-of-faiths-on-lgbt-issues-orthodox-judaism.
24. Leviticus 19:28, Ibid.
25. Rabbi Ari Shvat. “Transgender male in a minyan & in general” (Q&A accessed December 28, 2018) https://www.yeshiva.co/ask/?id=8685.
26. Or Kashti. “Being Transgender Is a Mental Disorder, Israeli Insurance Company Says” Haaretz (July 6, 2018, accessed December 28, 2018) https://www.haaretz.com/israel-news/being-transgender-is-a-mental-disorder-israeli-insurance-company-says-1.6246003.