Parasha / E-Letter

Parashat Ki Tetzei: Gender, Justice & Human Rights

0 Comments 30 August 2017

In her commentary to Parashat Ki Tetzei, Rabbi Gail Diamond reviews what the Jewish texts and sages have to say about gender presentations and identity. How can these traditions help us become more aware of justice, human rights and gender?


By Rabbi Gail Diamond

This week’s Torah portion, Ki Tetzei, contains the largest number of commandments of any portion in the Torah.  Amidst a list of seemingly disparate commandments, we find a commandment regarding clothing and gender.

A man’s apparel shall not be on a woman, nor shall a man wear a woman’s garment, for whoever does these things is abhorrent to the Lord your God. – Deuteronomy 22:5

This verse is problematic at the outset for progressive Jews who seek to create a community that is inclusive of a diversity of gender presentations and identities. It can be especially problematic for people who understand themselves as genderqueer, non-binary, or not fitting into conventional gender stereotypes. Many may feel that gender based restrictions on clothing have no place in contemporary religious life, and that the application of the word to’evah – abhorrent— to practices regarding clothing is in itself abhorrent. A look at the history of interpretation of this verse reveals that from the beginning rabbinic sources have differed regarding the purpose of this verse and how it should be applied.

Beginning in the Halachic Midrash and the Talmud through recent times, commentators have sought to understand the exact legal scope of this prohibition as well as the reason behind it.  On the face of it, the verse is confusing. Why should mixing up gendered clothing be so serious as to be defined as to’evah, abhorrent?

According to the Sifre, Halachic Midrash, which is later brought by Rashi, the issue is the purpose of the person wearing clothing of the opposite gender. As Rashi explains:

A man’s apparel shall not be on a woman: so that she will look like a man in order to go about among men which is only for the sake of adultery, and a man shall not wear a woman’s garment to go to sit among the women. For it is abhorrent – the Torah did not forbid it except [because] clothing leads to abhorrent acts.

In Rashi’s view, following Sifre, the problem with a person wearing clothing of the opposite gender is that they will “pass” as the other gender, in order enter spaces that are the purview of the other gender, and through this pretense enter forbidden sexual relations. The abhorrent behavior is forbidden sexual activity. The clothing is only a ruse to attain that. This interpretation was prevalent among early Ashkenazic poskim, and a similar position is found in Sefer Mitzvot HaGadol written in 13th century France.

Rambam takes a different position regarding the reason for these commandments. In Sefer Mitzvot, he refers to the practice of men and women wearing clothes of the other gender as “the way of the unbelievers.” He describes how the practice of cross-dressing is associated with Avodah Zarah (idol worship) and the working of various spells or magic charms. In his halachic code, the Mishneh Torah (Sefer Mada, Hilchot Avodat Cochavim, chapter 12, halacha 10), Rambam offers specific examples of which items of clothing are prohibited to men and women. To all the prohibitions he lists, Rambam offers the following general caveat: “all is according to the custom of the country.” Rambam seems aware that gender-based clothing codes vary based on local culture. He also mentions clothing that is understood as pertaining to one gender only, leaving open the possibility that some clothing is non-gendered.  In later halacha, the Shulchan Aruch follows the position of the Rambam.

In his gloss on the Shulchan Aruch, the Rema (Rabbi Moshe Isserles) makes clear that the principle of local custom applies to both men’s and women’s clothing. But he goes on to add a new restriction:

And even wearing one of the garments is forbidden, even though it can be seen from the rest of his garments that he is a man or woman.

With the Rema’s restriction, the notion that the problem is a person “passing” as the other gender (found in Sifre, Rashi, and the Sefer Mitzvot HaGadol) has been changed to a notion that items of clothing associated with a gender carry a particular forbidden quality. No longer is the question the intention of the wearer. This position argues for strict gender boundaries for their own sake.

More liberal and practical views that continue to focus on intention are expressed by the Bayit Hadash and the Turei Zahav (TaZ). According to the TaZ, wearing opposite gender clothing is forbidden when done for adornment but permitted when done to protect from heat, cold or rain. This text points us to the possibility that we can view clothing for its practical use in the world, a down-to-earth attitude that can help neutralize an obsession with appearances that is often part of discussions of fashion and clothing.

Clothing continues to be a primary marker of gender identity – a visible symbol that displays not only what my gender is, but how I relate to various gender codes and the notion of gender itself. Clothing continues to be defined as masculine and feminine, and through the years we see different levels of tolerance for men and women looking similar within the broader society. There have been periods in recent history where unisex clothing and androgynous looks have been in vogue, and others in which strongly feminine fashions have been the norm for women.

While much of the contemporary religious discussion of gender and clothing focuses on modesty, the question of gender definition through clothing is still alive and well in Jewish communities, if often unspoken. Clothing continues to be a dividing line between liberal and Orthodox Jews, and between modern Orthodox and ultra-Orthodox (Haredi) Jews. More broadly, the fashion industry continues to dictate much of the norms around clothing and gender, starting with pre-school age children. Events such as the Slut Walk call our attention to stereotypes about clothing, shame and violence.

Commitment to human rights, including the rights of women and the rights of transgender, genderqueer and non-binary Jews, calls for us to examine our own relationship to gender and clothing, to broaden our awareness of the extent to which we restrict ourselves and others through assumptions about clothing and gender. Awareness of the diversity of rabbinic texts on this issue can serve as a springboard for community discussion and consciousness raising about appearances, gender and justice.

Rabbi Gail Diamond. Photo by Stephen Ide.Rabbi Gail Diamond is a member of Rabbis for Human Rights. She is a freelance translator and editor. She graduated from RRC and served as a congregational rabbi before making aliyah in 2001. She was previously an educator and administrator at the Conservative Yeshiva.  She lives with her family in Tzur Hadassah.

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