Ki Seytsey and a Feminist Defense of Halakhic Egalitarianism / כי־תצא און אַ פֿעמיניסטישע פֿאַרטיידיקונג פֿון הלכישן עגאַליטאַריזם

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of parsha dvarim (Tōrah commentaries) written by an orthodox atheist transsexual anarchist, with guest posts from comrades. It's the work of each generation to extricate meaning from our cultural and religious inheritance, and it's crucial that we resist the narrative that Zionism owns Judaism. We aim to offer comment which is true to the pshat (i.e. engages with the plain meaning of the text, especially when it's difficult) and uses Tōrah like a light to reflect on our modern times.

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The men are fighting

Parshas Ki Seytsey contains a litany of various laws, beginning with rules governing the taking of a war-captive as a wife and ending with the injunction to remember what Amalek did to us in the wilderness and to wipe out their memory (known as “Parshas Zachor”). Along the way, we encounter many commandments having to do with marital relations, divorce, loans & interest, food justice, vows, the death penalty, cross-dressing, respecting parents, bird-shooing, shatnez, tsitsis, crushed testes, mamzers, the Amonites and Moavites, wet dreams, waste management, refugees, sex work, tsoraas, and workers' rights.

One of the laws in our parsha describes intervention in a fight:

Here is a mitzvah that has been followed all too well throughout halakhic history: when men are having an argument, do everything you can to make sure women don’t get involved. At the risk of having my hand cut off, as a halakhically observant and egalitarian woman, I have to respond to Misha’s dvar Torah, Pinkhos and the Feminist Case Against Traditional Egalitarianism. The core of his argument, as I understand it, is that maximally obligating women in the mitzvos both weakens communal halakhic commitment and erases gender difference as a meaningful axis for diversity of religious practice.

While both of these points are legitimate challenges worth addressing in their own rights, neither in fact arise from problems with halakhic egalitarianism as an ideology. In his effort to position weakness of commitment and gender erasure as stemming from the feminist push for egalitarian Jewish religious practice, Misha makes a number of strikingly antifeminist arguments about “women’s work,” the core of which have already been hashed out during the Second Wave. Rather than giving a point-by-point rebuttal, I will address Misha’s arguments as part of a broader articulation of what it means to be a feminist halakhic egalitarian.

As a movement, halakhic egalitarianism is young and in need of more rigorous statements of its values. My framing, then, centers on the more interesting conflict for religious feminists: how can we, as feminists, devote our lives to a system of religious obligation like halakha, with its history of misogyny—or any system that makes claims of absolute authority upon us?

Halakha is not feminist

We want our religious commitments to make sense to us. Too often we pursue that sense-making at the expense of listening: we impose values we already hold on a tradition—and on its keepers—that existed before us and will exist after us. Feminism is a particular set of movements with specific beliefs and goals. Halakha, as a several-thousand year-old religious project, carries its own desires and speaks its own values into being through the action of its practitioners. To insist on a feminist halakha is to flatten, to ignore, to erase what halakha is. We assimilate the tradition to ourselves without listening to the knowledge that only it can carry. There is a name for this violent act where we reduce the other to what suits our own needs: objectification.

By allowing halakha to be itself rather than forcing it to be feminist, I can enter into a relationship with and through it that is not based on violence, where I as myself encounter the tradition as itself. Together we change each other, and the change creates a space through which we can perceive the Divine.

Halakha responds to material realities

The antifeminist mode of thinking dominates the conversation about what halakha is, to the extent that we tend to assume that halakha is inherently an antifeminist project. Halakha, we are told, is a matter of objectivity, abstract & eternal categories, and total abnegation of the self. Sanctity is found in the absolute command of the Law. This is the Yeshivish/Brisker mode. As Rav Shagar puts it, Brisker ideology “turns the world of halakha into a system of objects imposed upon humankind,” such that “the halakhic concept [becomes] an absolute object that stands on its own, whose logic is given and understood from within itself” (In His Torah He Meditates: The Study of Talmud As a Quest For God, 92-93). As a feminist, I cannot enter into a relationship of absolute command—in fact, I cannot even call such a thing a relationship.

What is feminist about halakhic egalitarianism is its belief that halakha at its core responds to material reality. In this approach, the Torah is a divine-human covenant spoken in the language of the spiritual-material world; its ways, called halakha, are responsive to the needs of both members as we live in that world. (Do we prioritize our needs over God's? Perhaps too often, but God has a way of patiently insisting.) The boundedness of halakha to reality means that halakhic categories are only as stable as the reality which they seek to address.

As halakhic feminists, we know that there is no divinely decreed category of Man. I have made this point in technical terms already:

We do not presume there to be an abstract system of theoretical concepts underlying the halakhic process. Therefore, there is no such thing as ‘halakhic gender’ or ‘halakhic sex.’ ‘Woman’ means whatever it means to be a woman.

Women are not abstractly & eternally Other—we are fundamentally equal human beings, with particular spiritual-material needs and circumstances.

As a feminist, I fight against the misogyny that manifests many of those circumstances. As an observant Jew, I turn to halakha to guide me through how to live within those circumstances. When the circumstances shift, when what it means practically speaking to be a woman changes on a mass scale, halakha is responsive to that shift. Contra Brisker, what makes halakha a sacred practice is that it beholds us in our lived experiences with the Eye of God.

Traditional prayer belongs to all Jews

As an alternative to equality of obligation, Misha proposes an equality of cultural value between men’s and women’s work and practice:

We can elevate women and the invisible work of women-and-trans-people-and-some-queer-men to be as privileged as men's work … What if we elevated women's traditional liturgy (like tkhines) to the same station as men's?

As a halakhic argument, Misha does not offer any mechanism from within the tradition that could achieve this kind of social equality. The levers of material power in halakhic Jewish communities hinge on obligation, because obligation is what powers those communities. The most obvious way to cultivate equal appreciation for women and “our” work is to argue for and practice equality of obligation.

There is a deeper question beneath Misha’s proposal: whose liturgy are we praying with? When we talk about exemption from prayer, the prayer we’re talking about is, minimally, the Shema and the Amidah with their specific liturgies. According to tradition, these liturgies were set in the time of the Talmud or earlier (see Mishneh Torah, Reading the Shema 1:7). Tkhines do not hold the same weight as these texts—this is a consequence of the fact that halakha is not inherently feminist. More to the point, our liturgy for prayer is not “men’s” while tkhines are “women’s.” Traditional prayer is not alien to women; we are not suddenly barging in on a male practice. Chana, when she prayed to God for a child, became the model of how to pray for all Jews. The phenomenon of the mechitza itself testifies to the fact that women have historically prayed in the same way as the other genders, even as we were limited.

Men aren't obligated in prayer—Jews are

Misha characterizes the halakhic argument for egalitarian prayer like this: 

The most popular halakhik argument for egalitarianism is the Hadar model: there is one human gender (‘man’) and the lower socio-religious category of ‘woman’ is outdated and discarded.

The argument that egalitarian prayer is based on an elision of women into "halakhic men" is a strawman. The actual articulation of halakhically egalitarian prayer includes a range of arguments too complex for me to lay out fully here. Anyone with a serious interest in debating halakhic egalitarianism should read Gender Equality and Prayer in Jewish Law by Rabbi Ethan Tucker and Rabbi Micha’el Rosenberg, two of the movement’s leaders. No one who has studied the sources, however, believes that halakhic egalitarianism involves assimilating all Jews into a single gender across the board.

To put it as simply as I can, however: men are not obligated in prayer as men; they are obligated as Jews. Even Orthodox halakha understands that women are obligated to daven 3 times a day: see, for example, Benei Tziyyon (1940-1961), Orach Chayyim 106:1, “But those women who find themselves in a situation where they can pray certainly must pray all three prayers, because on the basis of the law they are obligated in all of the prayers according to all authorities.” I believe the story most egalitarian women have about why they daven as they do is not that they think they’re men, but that that's just how Jews pray.

Not even the most hardline egal Jew would argue that nowadays women aren't obligated in niddah (the laws of menstruation) because women no longer exist. What Misha characterizes as an erasure of womanhood is in fact a non-essentialist reading of the sources that address women. Turn to the text: "Women, slaves, and children are exempt from reciting the Shema and from tefillin" (Brachos 3:3). As feminists, as well as honest halakhists, we must ask: what material reality would make sense of this mishna’s association of women with slaves when it comes to the Shema? The 14th century commentator Abudarham puts that material reality in stark, if uncritical, terms: “The reason women are exempt from time-bound positive mitzvos is that a woman is subordinated to her husband to fulfill his needs.” In other words, women’s exemption from the class of mitzvos that includes the Shema and shofar stems from a (supposed) material reality in which women are subservient to their husbands in the same way that slaves are subservient to their masters. In the words of Rabbi Yoel Bin-Nun, a modern halakhist, “anyone who cites the rulings of the Sages, which are based on the notion that ‘a woman is similar to a slave’ in all arenas, fails to understand that they are transferring a halakha from one reality to another without any basis whatsoever” (found in Gender Equality and Prayer in Jewish Law, 145). It was never about being a woman; it was always about what being a woman meant.

Halakha is responsive to material reality; it is not a set of unchanging categories. The reasons driving women’s exemptions, and our resultant marginalization from communal Jewish life, are obsolete, inapplicable, and at best degrading. We are not turning everyone into men, because maleness was never the point. As feminists, we say: Jewish women are Jews, we are entitled to pray fully and as our whole selves, we are obligated as Jewish adults with just as much agency as anyone to show up to pray to our God in a community that needs us the same way it needs any other Jew. Without us, you are lacking roughly half of your side of the covenant. This is our tradition, our birthright, our divine relationship to uphold.

"Feminist" Orthodoxy punishes us for our oppression

Misha’s primary critique revolves around the misogynist dynamics of care work: 

More materially, when everyone is equally obligated in everything—in spending so much time studying and davening in shul—who does the domestic labor?

Misha seems to be unaware that childcare responsibilities, regardless of gender, supersede the obligation to daven. There is a broad halakhic principle that “anyone who is engaged in one mitzvah is exempt from another.” A pressing childcare obligation counts as “engaging in a mitzvah.” See Or Letziyon 2:7:24 (1987):

In any case, a woman who is taking care of children and is occupied thusly the whole day, and doesn't have time during the day to pray, is completely exempt from tefillah [prayer], since she is like one who is engaged with a mitzvah and is exempt from [another] mitzvah. ... And this is also the case for a man, where if the woman is not at home, for example she is giving birth, and the husband needs to take care of the children and cannot find time to pray, that he is exempt from tefillah due to osek bemitzvah [being engaged with another mitzvah], and is not even required to make up the missed prayer.

(Thank you to Laynie Soloman for bringing this Or Letziyon to my attention.)

In depriving women of our davening obligations, Misha upholds the very dynamic that forces observant women into the misogynist position of domestic laborer. 

Indeed, there is domestic labor to do in every household, and women do more than our share of it. That is not a reason to deny us our other obligations. If my husband (not that I have one, but bear with me) tells me to watch the kids because he needs to make the minyan, what am I, who values the minyan, supposed to say back to him? Egalitarianism in communal prayer fosters egalitarianism in the home: I am now empowered to say back, "No, this time I'll go make the minyan. You get the kids to school."

A thoroughgoing embrace of halakhic egalitarianism does not add to women’s burdens; on the contrary, it creates a home where religious power and responsibilities are shared equally between men and women. In a world after the writing and antiracist critiquing of The Feminist Mystique as well as The Second Shift, this line of argument should be obvious to any feminist. I am embarrassed even to have to write the example. You cannot endorse the spiritual and communal disenfranchisement of women and be a feminist. And if Misha’s real issue is that the egalitarian Jews he knows aren’t keeping mitzvos, then his problem is not with halakhic egalitarianism but with Brooklyn. [Editor’s note: see links for a schedule of TradEgal davening in Brooklyn and a calendar of antizionist davening across New York City.]

Judaism Is More Than Halakha

Halakha is a tapestry within a tapestry. Because it is responsive, it does not predispose us to change material circumstances. As a feminist, I cannot locate my full self within such a picture. Fortunately, Judaism is more than halakha. We have mussar for becoming more fully human; we have niggunim for rejoicing and grieving; we have kabbalah for the knowledge of the deep heart; we have Talmud to exercise our intellect and Tanakh to ground us in story. Even the mitzvos have their beyond-halakhic sides: loving our fellows as ourselves, loving God with all our hearts, remembering we used to be slaves—all these take us to realms far broader than halakha may go. When the banks of halakha touch or merge with the banks of feminism, I see that contact and help it expand: this is how halakhic egalitarianism greets me as a feminist. When the rivers split, there is another kind of space opened up between, and I do not reduce myself to encounter the divergence. The Torah encompasses it all.

Lexi Kohanski

is a trans Jewish writer and educator who focuses on empowering those who have not felt at home in Judaism. Her work has appeared in Gashmius Magazine, Approaching, and the Trans Halakha Project, and she regularly publishes through the T4Torah Patreon. Lexi’s cornerstone halakhic essay, "Be Whole: A Halakhic Approach to Gender and Transition", lays out a pathbreaking halakhic framework for relating to Jewish gender transition as a sacred undertaking. Lexi gives regular sermons on spiritual resilience and survival through her podcast, Torah for Trans Lives. She has learned at the Conservative Yeshiva, Pardes, SVARA, Hadar, Maharat, and Yashrut. Lexi’s home as a teacher is at the Torah Studio, where she serves as the organization’s Director of Online Learning.