Sometimes, a general prohibition is well-known, but the details of the prohibition are foreign even to seasoned talmidei chachamim. Although the prohibition of v’lo yilbash, dressing in the clothing of a different gender, is found in Parashas Ki Seitzei in Sefer Devarim (mitzvah 542), the topic applies in contemporary times. It is relevant, therefore, to discuss some of the details of the prohibition.
The prohibition is a lav that incurs malkos. It requires hasra’ah, a warning. However, if he was warned each time and sufficient time elapsed to put on and remove the garments, he incurs a violation each time (see Minchas Chinuch ibid based on the Gemara in Makkos 21b and Rambam Hilchos K’layim 10:30).
If someone force-dressed another in this manner, it is unclear whether the victim is in violation of the prohibition (see Tosfos Shavuos 17a and Nazir 43b).
There is an associated prohibition called “u’vechukoseihem lo seileichu—don’t walk in their ways,” which is mentioned by the Sefer HaChinuch as well as the Rambam in Sefer HaMitzvos (lo sa’aseh #39). The Mabit in his Kiryat Sefer (Hilchos Avodah Zara 12:55) also mentions that there is an additional rabbinic prohibition called “v’asu mishmeres l’mishmarti—and you shall make a protective fence to My laws.”
The Mishnah in Makkos records a debate between the Tanna Kamma and Rabbi Eliezer ben Yaakov as to the exact biblical parameters of the prohibition (in other words, what is a Torah prohibition and what is a rabbinic prohibition). There is also a debate among the Rishonim as to which view we pasken in accordance with. One issue under discussion is whether it is a two-step prohibition or just one step. Does the violator need to sit and join with the other gender in addition to the actual dressing part? Or is just dressing in that manner sufficient to be in violation of the prohibition? Also is the person in violation even if he wears just one garment or must it be all the garments necessary to pass as the other gender? Most Rishonim rule stringently like the view of Rabbi Eliezer ben Yaakov.
The prohibition is also violated if it is done just temporarily or as a joke (see S.A. Y.D. 301:5). Thus, even if one was young and having fun at a festival, it is still considered a violation.
If one is unsure whether or not the particular garment under discussion is unique to the opposite gender, it would still be prohibited, as there is a concept of safeik d’Oraysa l’chumrah—in regard to a doubt on a biblical prohibition we are stringent.
What if it is a situation of pikuach nefesh? Believe it or not, there is a debate in the poskim whether this prohibition falls under the category of abizraihu d’gilui arayos. Some poskim hold that it would even be forbidden in a case of pikuach nefesh! This is the view of the Divrei Chaim of Sanz (in his responsum #62) and if this author recalls correctly, it is also the view of the Vilna Gaon. The Terumas HaDeshen (Siman 196) and Igros Moshe (O.C. IV 75:3), however, take the lenient view.
In the kidnapping of Yossele Schumacher the prohibition was actually not violated because a katan is exempt from this prohibition (see Minchas Chinuch 543:2). The father, however, is obligated in instructing his son not to violate these prohibitions.
A blind person (see M.B. 473:1) is obligated in all the mitzvos in the Torah and there is no exception here given to a blind person.
Based upon the words of the Shulchan Aruch (Y.D. 303:1 in regard to k’layim), if one sees his friend doing such a thing, there appears to be an obligation to remove it from him. (This may be considered illegal, however, so one must ask his rav or posek before proceeding.)
What if someone was born as either a tumtum or androgynous? The indication of the Rambam (Hilchos Avodah Zara 12:10) is that they must wear only unisex clothing and must take on the chumros of both genders.
In regard to this last question, many years ago this author was visiting Rav Yitzchok Zilberstein, shlita, during a shiur given exclusively to rabbis of hospitals. I was given permission to attend this shiur because I was on the board of ethics of an American hospital. Rav Zilberstein’s practice was to present his current she’eilos to those gathered and then relate to everyone the ruling of Rav Elyashiv, zt’l, on the matter. The question he posed was in regard to a man who was undergoing some testing and, to his chagrin, discovered that genetically he was considered a woman; he had XX chromosomes and not XY. Apparently, he had been born with both features, and at the time of his birth the doctors, in consultation with others, had determined that the best course of action was to render him a male. Now, as Rav Zilberstein presented it, “Nafsho b’she’eilaso,” his life was in this question. He was married and put on tefillin every day. What should he do? Rav Zilberstein asked, “What does the Rabbi from the United States think?”
I suggested the possibility that there was a sfek sfeikah, a double doubt here. One doubt was whether or not genetic testing is conclusive in regard to the determination of gender in halachah. And even on the side that it is conclusive in that regard, it could very well be that the view of the Raavad is correct. His view is that androgynous is considered a third gender entirely. And even though the Shach is of the opinion that a true sfek sfeikah must be fully reversible, not every authority agrees with the Shach in this regard. Since it is a matter of such serious import to the person in question, we can be lenient. Rav Zilberstein responded that this was precisely what Rav Elyashiv had ruled on this case.
The author can be reached at Yairhoffman2@gmail.com. Read more of Rabbi Hoffman’s articles at 5TJT.com.