Is the Scottish government right in wanting to allow people to self-identify their gender?

Question: Is the Scottish government right in wanting to allow people to self-identify their gender?

An Orthodox view

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Rabbi Alex Chapper

She may have had the best of intentions but Scotland’s First Minister Nicola Sturgeon faced a mounting political crisis after she undermined her own gender laws by refusing to say whether she believed a trans double rapist was a woman.

There is even anger within her own party, whose policy would allow people to self-identify their legal gender.

Writing in the Daily Telegraph, Alan Cochrane recently suggested that “Sturgeon’s obsession with the trans issue has shown that she’s the extremist here rather than the cautious politician this measure of social reform requires”.

Whether you agree with that assessment, the UK government deemed it necessary to make the unprecedented move of using section 35 of the Scotland Act to prevent the Bill receiving royal assent.

While this issue continues to exercise the minds of politicians on both sides of the border, Jewish law has a clear perspective and views gender as unchangeable and determined solely by anatomy at birth, regardless of hormonal treatments, surgery or even self-determination.

However, while not being in a position to give official recognition to a person who self-identifies their gender, there are certainly other principles that are relevant to our approach.

The Mishnah teaches that the honour of our fellow human being should be as precious to us as our own (Ethics of the Fathers 2:10). This is not just an abstract notion, but the basis of the universal concept known as kavod hab’riyot — dignity of the individual — the expectation that everyone is treated with respect.

Similarly, the great talmudic sage Rabbi Akiva states: “Beloved is man, who was created in the image of God; it is by special distinction that he was created in the image of God” (Ethics 3:18)

The 18th-century commentator Rabbi Israel Lipschitz, among others, explains what is meant by the phrase “in the image of God”. It specifically refers to the intellectual capacity that every human being possesses and the freedom of choice with which we are endowed.

These two unique attributes not only make us similar to God Himself but also reveal to us just how precious every individual is in God’s eyes.

These principles highlight for us the importance of showing respect to everyone, regardless of the choices that they make and especially the need to be sensitive to those who are struggling with gender dysphoria even if they cannot attain legal recognition.

Alex Chapper is senior rabbi of Borehamwood and Elstree (United) Synagogue

A Progressive view

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Rabbi Jonathan Romain

Have you ever been stuck in a lift? You press the buttons, but nothing happens.

Logically, you know that someone will notice the lift is not working, and they will summon the engineers to help you. But you still panic. You feel isolated and helpless.

If that feels bad, can you imagine how terrible it must feel to be trapped in the wrong body, unable to ever wriggle free and doomed never to escape?

Thankfully, that inability has changed in recent decades, and those in that dreadful situation can now live out their true identity through medical procedures. We should be pleased at such advances.

Still, although this solution is relatively modern, the problem is not. Back in the fifth century, the Talmud refers to various groups of people whose sexuality is undefined or not what it appears (Yevamot 83b; Ketubot 101b) — the androgenes (someone with both male and female characteristics), the tumtum (indeterminate gender) and the ailonis (woman with different bodily features that prevents her having children) .

Today, the major problem is that of fear obscuring reality, as many women feel that their lives will be adversely affected by the entrance in female spaces of a transwoman (a woman who was assigned male at birth).

In a society where women are still at risk every single day — ranging from unpleasant catcalls to brutal murder —such fears need recognising.

But despite a few well-publicised cases, the number of crimes by transwomen are very rare, while they are infinitesimally small compared to the number of crimes committed against them.

In the vast majority of cases, a transwoman will have no desire to harm cis-women (women assigned female at birth); on the contrary she will be only too delighted to blend in with them.

In addition, the Scottish decision to set easier conditions for transwomen to gain gender recognition certificates is irrelevant, as no one needs to produce a certificate when entering, for instance, women’s toilets. Any man intent on rape can simply dress as female and go inside.

There are more complicated areas where cis-women can be disadvantaged, such as transwomen competing in athletics, or who have had criminal convictions when men, but various solutions are possible.

A greater danger is young people who are allowed to undergo life-changing medical procedures which, in some cases, may turn out to be inappropriate for them and even detrimental in the long term. That is a more important issue to address and to ring-fence with safeguards.

Jonathan Romain is rabbi of Maidenhead (Reform) Synagogue