On Crutches

Okay so first the background.

Firstly, matrilineal descent is a feature of Rabbinic Judaism, the much larger supersect of Judaism. The smaller sect, the Karaite Jews, don’t follow the Talmud and later works of Jewish law, having a more streamlined tradition of interpretation of Torah that aims to be as close to the Torah text as possible. Karaites use patrilineal descent. I’m not sure how they’d answer this question, so I’ll just focus of Rabbinic Judaism, but I felt it bore mentioning.

Also, this rest of this post will be about Judaism in the United States, because that’s what I know enough about to answer.

So, traditionally in Rabbinic Judaism, Jewishness passes through the mother, for a few reasons. The two I’ve heard are because you don’t definitively know who the father is and because women have often been the ones doing the bulk of childcare; so the idea is that young children are learning more about religion and culture from their moms than their dads. I think that’s a lot less true now and that’s likely a reason why this conversation opened up.

So let’s talk about the denominations and how they approach intermarriage a matrilineal vs. equilineal descent:

So, Orthodoxy, which sees itself as the continuation of the Jewish legal tradition, maintains matrilineal descent. Their perspective on intermarriage is that it does not constitute a legal marriage under Jewish law because Jewish law cannot bind gentiles (someone correct me if I’ve got this wrong), and also that sociologically it’s bad.

Conservative Judaism sees itself as similar to Orthodoxy except it opens avenues to overturn Jewish legal precedent, even ancient Jewish legal precedent, for times when there’s a communal need or to correct inequalities. It’s also less concerned with maintaining traditional “vibes” or experience when tasked with new questions (eg on whether electricity is allowed on Shabbat). On the topics of intermarriage and descent, Conservative has the same stance as Orthodoxy, but there’s been a lot of discussion within the movement about whether these stances should change. I will not be surprised if they shift in the next 10-20 years.

Reform Judaism views Jewish law as something we should study and learn from, but are bound by in the same way as Orthodoxy sees it. We should understand the laws, and interpret them as to what is meaningful in our lives. The official Reform position is that any child with one Jewish parent and one non-Jewish parent is Jewish if they are raised Jewish. It’s left up to individual rabbis/temples how to define “raised Jewish” and how to handle edge cases. Unofficially, there are rabbis/temples who recognize folks as Jewish if they have one Jewish parent even if they weren’t raised Jewish. Reform explicitly allows intermarriage, and as of two years ago accepts students in interfaith relationships at their rabbinical school.

So how does this all apply to trans people?

Well, firstly, because most people are cis, most Jews are cis. Which means that right now, most rabbis are cis (although… my understanding is that currently, non-Orthodox rabbinical students skew disproportionately queer, so it’ll be interesting to see how that plays out).

And so this means that a lot of these questions have been answered by cis people in different ways than how trans people might answer them.

Also, these questions are comparatively new, even though trans people have always existed. Jewish law traditionally exists as a strictly binary-gendered system. It acknowledges that intersex people exist, but only so it can slot them into that binary system. Interestingly, this doesn’t apply to God; whose gender can be understood much more fluidly.

But, relevantly, all non-Orthodox denominations in the US are gender-egalitarian in most respects. Conservative Judaism did away with gendered differences in participation in services, ritual garments, and seating during services, ritual candle-lighting, and challah offerings. They state that gender in Jewish law now only applies to “anatomy-based” Jewish law. Which… already makes obvious that this framework won’t know what to do with trans people. But more on that in a bit. Relevant is the fact that the question of descent is still gendered in Conservative Judaism.

Back to OP’s question:

Because Reform takes a gender-egalitarian approach here, this isn’t a question for them, as the child is Jewish.

Among Orthodox people who do not recognize transness as real, the answer would be that it goes by “the woman,” ie, the person who they see as a woman based on that person’s assigned sex at birth. But we don’t need to waste energy on this.

Among Orthodox and Conservative people do who recognize trans people, many say that it goes according to the birthing parent or egg donor, not because they see the birthing parent as a mother; rather, because they believe that when Jewish law says mother, it means birthing parent or egg donor. (There is also discourse about whether it means birthing parent or egg donor, in cases where that isn’t the same person.) Essentially, this perspective assumes that Jewish law does not recognize transness, and that a trans-inclusive read means understanding gendered categories as actually sexed categories.

But trans Jewish scholar and rabbinical student Lexi Kohanski has said that such a framing is actually transphobic, because it reads the text through a lens that understands “woman” to mean “person with a womb/egg,” and that by doing so we as the reader are actually bringing a transphobic read to the text. I’m not sure what she has to say about this specific question, but it’s a relevant perspective.

A lot of trans questions are being asked nowadays of Jewish law, and the legacy denominations are frankly not equipped to answer them. For instance, a few years ago the Conservative movement published a Jewish legal response stating that trans women who convert to Judaism are required to be/get circumcised, because the requirement to circumcise is based on anatomy, not gender. But, trans folks have questioned this, as well as brought up the fact that it could be dysphoria-inducing.

Relatedly, many Jewish trans men have asked the question of if, after experiencing bottom growth on t, they’re now obligated in the commandment of circumcision. This is a question not just of gender but of anatomy; if they now have a foreskin, shouldn’t they do something about that? The solution many folks have come to is to pierce the foreskin such that a drop of blood comes out, based on the similar ritual for cisgender men who have been circumcised but not ritually so (eg, cis male converts).

These issues are discussed in a new trans-created scholarly work of answers to trans-related Jewish legal questions called the SVARA Trans Halacha Project, which I admit I haven’t read yet, so it likely has better answers than what I’ve written here! However, it doesn’t address OP’s question.

In the case of a Jewish trans woman having a biological child with a gentile, I wonder if some people would rule that the child is Jewish, based on the framework I mentioned above regarding reading the text trans-positively. I imagine some would.

But the question you ask is what about the case when there is no mother? How would that framework answer that? I think realistically that the practical answer is that very few people use that framework and so the answer would come from another framwork: either that the child is Jewish regardless, that the child is Jewish regardless of parental gender as long as they’re raised Jewish, or that it goes by who carried the child (or possibly who donated the egg).

In the trans-positive framework, though? I’m not sure! If anything, I think this presents a challenge to that framework! Since we can’t just say that the child is null, neither Jewish or non-Jewish. I guess we could say that the child isn’t Jewish because there’s no Jewish mother, but that seems a little silly to me, because it would mean that two Jewish non-women who produce a biological child together cannot produce a Jewish child, which wouldn’t be a desired or logical outcome in any framework.

Another place you could look for precedent here is a case of two cis men (either both Jewish, or one Jewish and one gentile) adopting a child or using surrogacy. It’s a slightly different type of case but it has some similarities I think.

Ultimately, I think the best option is to convert the child either way, just so that all of one’s bases are covered.

As an aside, it’s just generally rare that transness and gendered Jewish law even interact, because those things basically belong to different communal alignments. There just aren’t a lot of trans folks in spaces that gender Jewish law, and those I’ve known have had a mixed bag of experiences. And those are binary trans people. The one time I’ve seen non-binary identity ritually recognized in an Orthodox space is a very religiously-progressive Orthodox synagogue (with a woman rabbi) that created a prayer section specifically for nonbinary people (in addition to the existing men’s and women’s sections), but that isn’t common. The reason this particular question breaks these norms (ie, that transness is the realm only of gender-egalitarian congregations) is because the Conservative movement is mostly gender-egalitarian, but this is one of the areas in which it isn’t. So, in some sense, I guess this is really a question about Conservative Judaism.

Another caveat is I’m no longer really at the forefront of these conversions because of how my communal involvement has shifted so some of this information may be outdated.