From the Files of Tzvi Sinensky

Lo Yilbash and Gender Difference: A Rejoinder to Moshe Kurtz

Tzvi Sinensky -

Moshe Kurtz is a passionate scholar who deserves credit for being unafraid to publish an essay weighing in on a sensitive contemporary subject. Kurtz, however, fails to demonstrate that lo yilbash provides an adequate foundation upon which to construct Torah-based opposition to contemporary gender-neutral trends.[1]

Kurtz’s argument runs as follows. The halakhic ban on cross-dressing and related activities, lo yilbash, is becoming increasingly irrelevant in our world. In part, this is due to the inherent subjectivity of lo yilbash, which in many cases is dependent on the individual’s intent. More importantly, it is also an outgrowth of contemporary society’s inclination toward blurring the gender binary. Because the halakhic consensus is that the ambient culture determines gendered norms for purposes of lo yilbash, the increasing erasure of gender differences raises the question as to “if and how” lo yilbash remains relevant “in a society that continues to erase any meaningful demarcation of gender norms.”

Kurtz is quick to note that some societal changes should be viewed positively, such as equal pay for women and paid paternity leave. He also takes pains to clarify that he is not discussing “questions about gender dysphoria, transgender, and non-binary identity.” Still, the larger trend toward minimizing gender differences raises the specter of the increasing irrelevance of lo yilbash, and calls on us to inquire whether or not this erasure is concerning.

Having formulated his controlling question, Kurtz contends that the potential erasure of gender differences should be of profound concern to halakhically-committed individuals. First, some aspects of lo yilbash are not contingent on cultural norms. This means that the blurring of gender differences is liable to lead to halakhic infractions. It also suggests that lo yilbash does not merely require us to follow the norms of the ambient culture, but also requires us to maintain certain objective gender distinctions. More broadly, the larger philosophy animating lo yilbash dictates that we maintain the gender binary in certain key respects. Finally, the Torah’s opposition to the dissolution of the gender binary is “not limited to the prohibition of Lo Yilbash but, indeed, is universal to the philosophy of the Torah.”

While he does not offer a full complement of practical ramifications of his argument, Kurtz points to growing gender-neutral preferences in attire and women’s service in army units as two particularly noteworthy instances in which lo yilbash remains pertinent in today’s milieu. He concludes that “the imperative to maintain the integrity of gender norms remains more relevant today than ever, and it should encourage us to err to the side of caution in our observance of this Halakhah.”

Unfortunately, Kurtz’s attempt to marshall lo yilbash as a basis for opposing the blurring of the gender binary suffers from a series of fundamental flaws. He provides insufficient criteria by which to distinguish legitimate shifts from illegitimate ones. And, as we will demonstrate, the small number of action items Kurtz manages to muster renders lo yilbash an ineffectual tool for upholding the gender binary in practice.

Kurtz’s analysis of halakhic texts is similarly unconvincing. He fails to persuade the reader that there is sufficient evidence to accept the minority views he prefers to follow and the plausible readings he sees as dispositive. And while Kurtz invokes a handful of texts beyond lo yilbash in support of his claim that Halakhah insists that we take proactive steps to maintain the gender binary, he does not do so in a thorough or systematic fashion.

As a result, the essay fails to present sufficient support for its overall claims. This leaves the reader with the disquieting sense that Kurtz’s reading of lo yilbash and the larger halakhic ethos are impressionistic, not rigorous. This would be problematic for any persuasive essay, all the more so one that tackles a fraught topic possessing far-reaching, emotionally wrenching implications. Whatever one’s general views on contemporary gender trends, lo yilbash provides an inadequate foundation for those seeking to oppose current gender trends in Western society on the basis of Torah texts.

Drawing Distinctions and Practical Matters

In his critical assessment of these trends, Kurtz does not do enough to define criteria by which we can discern which changes are good and which are objectionable. For instance, according to Kurtz, changes such as equal pay for women and parental leave for men are “ostensibly positive,” but others such as gender-neutral clothing and women serving in the army are not. But this distinction raises countless more questions than it resolves. Which moves toward gender neutrality are good, neutral, and bad, and how do we decide?

Kurtz’s citation of R. Shternbuch, who maintains that the standards for lo yilbash follow only the actions of “modest women,” brings this problem into sharp relief. Kurtz deduces from R. Shternbuch’s discussion of women who smoke that “when changes are promulgated by sectors of society that generally promote immodesty and promiscuity, the application of lo yilbash will remain unmoved.” Let us set aside the fact that, as Kurtz himself notes elsewhere, this is contrary to the predominant view among poskim, who rule that the ambient culture’s practice is determinative for purposes of lo yilbash. But there is a further fundamental difficulty: can we meaningfully discern which practices began with observant women, and which were due to the influence of the secular world? Kurtz notes this himself, writing that when “modest women began to drive cars, we can accept those developments as legitimate cultural change.” But this logic is strained. Did not secular women drive cars before Haredi women? Is there no connection whatsoever between the two? What about women who ride bicycles or wear fashionable modern clothing recast in modest form?

Moreover, in large measure due to the inherent variability of lo yilbash, Kurtz is not able to offer much in the way of practical recommendations. Granted, he does contend that we should prohibit women from enlisting in the army, which we consider below, but this would have little impact on diaspora communities. He mentions authorities who oppose gender-neutral baby names and baby outfits, but it is unclear whether or not Kurtz would recommend these in practice. (Would he really take a stand against naming one’s child Adin, Hadar, Nitzan, or Shachar? Does he discourage parents from dressing newborns in white, yellow, and green outfits?) Kurtz also spotlights the subject of gender-neutral adult clothing. But here too, the practicalities are unclear. The reality is that many tee-shirts, sweatshirts, and sweatpants for sale today are gender-neutral. According to Kurtz, must one avoid wearing gender-neutral clothing for reasons of finances, comfort, or convenience? Setting aside questions of modesty, would he object to those who pair black, white, gray, green, or blue sweatshirts with sweatpants of the same colors?

The severe limitations on practical ramifications is understandable but nonetheless problematic for Kurtz’s thesis. If lo yilbash teaches that we must take proactive steps to maintain the gender binary, there needs to be a fair amount of practical applications. Otherwise, it is unclear whether Halakhah provides sufficient tools to ensure the retention of the gender distinctions that Kurtz wants us to “transmit and cultivate in our contemporary and future generations.”

The old saying attributed to Sun Tzu, “Know thy enemy,” means that one who wishes to be victorious in battle should first plumb the depths of the enemy’s psyche. One can only imagine what Sun Tzu would say about one’s chances of success in a war in which one has little way of determining whether the incoming attack is from foes or friendly fire. If Kurtz cannot provide a meaningful methodology for discriminating legitimate from illegitimate practices, and can only identify a handful of concrete applications of lo yilbash, it is hard to see how being stringent in this area will actually be of help in upholding the gender binary.

Minority and Majority Views

Let us turn to Kurtz’s argument that lo yilbash requires us to uphold the gender binary. Kurtz regularly presents as dispositive minority views that support his reading of lo yilbash. In a number of these cases Kurtz explains that he prefers a particular minority (or, in the case of army service, majority) opinion because the gender-difference reading of the sugya is most compelling. Yet in each case his analysis fails, either because his reading of the sugya is not compelling or because the sugya does not provide adequate support for his larger claim about lo yilbash and gender difference.

Perhaps the most important example is Kurtz’s analysis of the underlying reasoning for lo yilbash, particularly in light of the position of R. Eliezer ben Yaakov. Kurtz prefers the minority of biblical commentators, such as Ibn Ezra, Abravanel, and R. Hirsch[2] (we can add Recanati[3] for now, and other authorities later), who read R. Eliezer ben Yaakov as advocating for an essentialist gender distinction, against the majority of rishonim, who read R. Eliezer ben Yaakov as concerned for sexual promiscuity and/or idolatrous practices.

In truth, from the standpoint of peshuto shel mikra, my sympathies are in line with the increasing tendency among biblical scholars to read the prohibition as a sort of kilayim applied to gendered clothing. This would be consistent with Kurtz’s reading.

Moreover, on its face, Kurtz’s reading is certainly a highly plausible interpretation of R. Eliezer ben Yaakov, whom Kurtz correctly notes is widely accepted as authoritative. Kurtz also correctly notes that it is difficult to square R. Eliezer ben Yaakov’s choice to single out women engaging in warfare and men engaging in acts of feminine beautification with the concern for idolatry. (This presumably led Maimonides, who is deeply concerned for idolatry, to present the sugya in radically different fashion than does R. Eliezer ben Yaakov, as will be discussed below.)

But it is in the final step of the argument that Kurtz falls short. Instead of the gender-difference interpretation, an equally plausible reading of R. Eliezer ben Yaakov is that he prohibits any act that can lead to promiscuity irrespective of the initial intent of the individual. The most basic argument between the Tana Kama and R. Eliezer ben Yaakov would therefore be whether the prohibition is limited to a case when one cross-dresses with intent for promiscuity, or even applies when one does not set out with that intention. As numerous commentators note,[4] men often engage in acts of promiscuity during wartime, making this a prime opportunity for women in the ancient world seeking to engage in acts of promiscuity. On the other hand, because women’s garb was far more distinctive, a man wishing to intermingle with women could disguise himself much more effectively than a woman wishing to intermingle with men. R. Eliezer ben Yaakov therefore singles out these activities as prohibited beyond the basic category of cross-dressing. Given that there are two possible readings of R. Eliezer ben Yaakov, and that the majority of commentators prefer the promiscuity thesis over the gender-difference interpretation, Kurtz’s reading cannot be fairly presented as dispositive.

Kurtz also understates the extent to which the gender-difference interpretation is rejected by the overwhelming majority of early authorities. As Ronit Irshai points out, the overwhelming majority of rishonim see lo yilbash as seeking to avoid promiscuity.[5] This includes heavyweights such as R. Shlomo Yitzhaki (Rashi s.v. lo, ve-lo, ki), R. Samuel ben Meir (Rashbam s.v. lo), R. Joseph Bekhor Shor (Bekhor Shor s.v. lo), R. Jacob of Korviel (Sefer Mitzvot Katan 33), R. Eliezer of Metz (Yereim 385), R. Moshe of Coucy (Sefer Mitzvot Gedolot Negative Commandments 60),[6] Maimonides (Negative Commandment 40; Guide 3:37), the author of Sefer ha-Hinnukh (542-3), and R. Bahaye (s.v. lo). (Ironically, Kurtz makes much of R. Bahaye’s view that one may not shave certain parts of their beards to preserve the gender binary, but neglects to note that R. Bahaye interprets lo yilbash as intended to prevent promiscuity.)

In fact, the naturalistic position only became commonplace in the 19th and 20th centuries, presumably in response to the rise of feminism. Kurtz cites Hirsch, to which we may add R. David Zvi Hoffman,[7] Netziv in one passage,[8] R. Barukh ha-Levi Epstein,[9] R. Menahem Mendel Schneerson,[10] the authors of the Artscroll Stone Humash commentary,[11] R. Shlomo Aviner,[12] and R. Yaakov Ariel,[13] all of whom espouse comparable views. That it is overwhelmingly modern thinkers who invoke lo yilbash to reinforce gender differences is telling, and should give us pause before asserting that this interpretation was taken for granted by authorities writing before the rise of modern feminism.[14]

In the case of Targum Yonatan, Kurtz cites a minority source without offering any clear argumentation as to why we should weigh this opinion heavily in formulating our overall view of the sugya. Presumably, Kurtz means to argue that while this Targum “is not a typical halakhic source, and it is not cited by any rishon,” its very existence, coupled with the fact that some aharonim were concerned for this view, contributes to the larger argument that the standards for lo yilbash are more objective than we might otherwise assume.

But if this is Kurtz’s intention, the argument is not compelling. First, the fact that the Targum is not reflected in Hazal, rishonim, or canonical works such as Shulhan Arukh offers a sense as to just how much of an outlying position it is. More than that, even according to Targum, we can just as easily draw the opposite inference: the very fact that Targum singles out tzitzit and tefillin suggests that these are the only objective gender markers prohibited to women, and that we should not use these as a precedent for other distinctions in regard to dress or behavior.[15]

As to the question of women at war, here Kurtz plants himself on firmer ground, as the overwhelming majority of halakhic authorities bar women from engaging in war even where it is the cultural norm for women to do so. Yet again, Kurtz is not satisfied to merely cite the majority view; instead, he contends that the face reading of R. Eliezer ben Yaakov precludes women from the act of engaging in warfare, irrespective of any weaponry she might carry or wear.

Here too, though, Kurtz’s argument falls short of the mark. Part of the difficulty seems to be that he wants to argue that women are barred not from wearing armor or even from engaging in battle while donning weaponry, but from the mere act of engaging in warfare, with no relation to clothing whatsoever. This appears to be motivated by Kurtz’s desire to claim that lo yilbash governs not only clothing but activities as well. Yet even this is not is not fully supported by the Bavli, in which R. Eliezer ben Yaakov only prohibits women from going out to war with weapons, never mind the Sifre,[16] which cites R. Eliezer ben Yaakov as prohibiting a woman from “wearing weaponry and going out to war.” His preferred reading again leads Kurtz to acknowledge that he is siding with the minority view; most authorities, including R. Moshe Feinstein, require women to bear arms in order to violate lo yilbash. And while Rav Moshe Feinstein does add, as Kurtz emphasizes, that a woman who participates in warfare may not violate lo yilbash but nonetheless is engaging in an act designated for men, it is unclear whether or not Rav Moshe sees this as conceptually connected to lo yilbash.

In any event, even if Kurtz’s preferred reading is correct, this reading of R. Eliezer ben Yaakov would still be of limited import. Similar to our comment regarding Targum Yonatan, outside of martial matters, it would appear that R. Eliezer ben Yaakov would likely acknowledge that the standards of lo yilbash for women are subjective.

Furthermore, even the assertion that limiting army service to men is an objective norm appears to be subject to dispute. While this indeed appears to be the face reading of the Sifre and Bavli, Maimonides and R. Yosef Karo appear to have read R. Eliezer ben Yaakov quite differently, as Kurtz correctly notes elsewhere in his essay. Instead of simply prohibiting women from engaging in warfare, Maimonides (Hilkhot Avodah Zarah 12:10), who is cited more or less verbatim in Shulhan Arukh, very clearly emphasizes the importance of women wearing male armor to the prohibition, and groups such dress together with other examples of male clothing that are barred from wearing men’s clothing.

While he references Maimonides’s position, Kurtz does not follow the former to his logical conclusion. A straightforward reading of Maimonides makes it clear that the prohibition against women wearing men’s armor is subject to cultural changes just like all other clothing. This means that Maimonides and, by extension Shulhan Arukh, codify no examples of objective gender norms on the basis of lo yilbash. And while Kurtz is certainly entitled to prefer the face reading of the sugya over and above Maimonides and Shulhan Arukh, this is certainly an important point in considering whether or not the gender-difference reading is dispositive.

This is also important for Kurtz’s contention that the prohibition on women serving at war is strictly binding. In fact, notwithstanding the majority view among poskim, the face reading of Rambam and Shulhan Arukh is therefore that lo yilbash does not prohibit women from serving in the army in a cultural environment in which such service is normative. Indeed, this explanation is set forth by R. Yehuda Herzl Henkin (albeit as a limmud zekhut),[17] R. Daniel Wolf in the section he authored for Beit Hillel’s responsum on this subject,[18] and R. Yuval Cherlow.[19] It is also worth noting that in some segments of the dati le’umi community, the number of rabbinic voices in favor of women serving in the army has been fast increasing over the last decade.[20] Kurtz’s assertion that “there remain a few impasses, such as women serving in military combat units, which are exceedingly difficult to justify in light of what we reviewed” is therefore not borne out by a fair reading of the sources.

This difficulty also arises in regard to Kurtz’s citation of R. Wosner’s invocation of R. Emden to the effect that one must avoid dressing babies in gender-neutral clothing. R. Emden’s position is a stunningly novel one that is rejected by the majority of authorities, including R. Ovadia Yosef.[21] Indeed, even R. Wosner himself initially cites R. Emden’s ruling as an enigmatic position, and is ultimately unsure whether or not to take Emden’s words literally. Here too, Kurtz cites a non-standard view as evidence that lo yilbash requires us to maintain gender distinctions more broadly in society. If anything, though, the uncommon view suggests that the more mainstream halakhic viewpoint points in the opposite direction.

Beyond Lo Yilbash

Kurtz also invokes a handful of texts beyond lo yilbash in support of his claim that Halakhah insists that we take proactive steps to maintain the gender binary. Yet he does not do so in a thorough or systematic fashion, again leaving the reader unconvinced that these readings are authoritative. A contested comment of Rabbenu Bahaye and an off-handed remark by R. Moshe Feinstein are significant but do not suffice to establish an overarching Torah philosophy.

Other texts Kurtz references provide little support for his thesis. The story regarding Hazon Ish’s admonition of a family member who dressed a young girl in pants may well be irrelevant: Hazon Ish may have objected to the pants not on the basis of lo yilbash, but due to concerns of modesty. Following Maharal, Kurtz similarly cites Abaye’s admonition that one should not rejoice over the miracle of a widower who nursed his child, as evidence that this violation of the gender binary was an unfortunate necessity. Yet Kurtz offers no reason that we should prefer Maharal’s reading of the sugya over those of other aharonim, who read Abaye’s comment in a manner unrelated to matters of gender.

Conclusion

Kurtz sums up by averring that “while the details and applications of lo yilbash are debatable, the ethos is undeniable.” This conclusion is not forthcoming. The essay’s contentions regarding the scope and ethos of lo yilbash can be easily deflected, and in any case are argued toward unclear ends.

It goes without saying that developing a Torah approach to gender distinctions is essential, and it is worth reiterating my opening point: Kurtz deserves credit for taking this on. Unfortunately, his attempt to use lo yilbash as the primary lens through which to analyze gender differences fails to do justice to the complexities and sensitivities necessary for a rigorous contribution to this subject.

[1] Thank you to my colleague David Fried for his exceptionally insightful comments on earlier drafts of this response essay.
[2] He cites Hirsch’s commentary to the Bible, to which we may add the somewhat different but parallel interpretation he provides in Horeb, chap. 64, 304-5.
[3] Commentary to Deut. 22:5, kabbalistic interpretation.
[4] Ibn Ezra Deut.. 22:5 s.v. lo, Hizkuni ad loc., R. Bahaye ad loc., Ba’al ha-Turim s.v. keli, Ha’amek Davar ad loc.
[5] “Cross-Dressing in Jewish Law and the Construction of Gender Identity,” Nashim no. 38 (Spring 2021): 47-68.
[6] Rav Moshe claims that even R. Eliezer ben Yaakov acknowledges this point, because the rabbis teach that “a verse does not leave its face meaning.”
[7] Sefer Devarim, commentary to Deut. chap. 22.
[8] Sifre im Emek ha-Netziv, Vol. 3, 253-4. See, however, Ha-Emek Davar Deut. 22:5 s.v. lo and Meromei Sadeh, Vol. 3, Nazir 59a s.v. R. Eliezer ben Yaakov, for a related but different interpretation.
[9] Torah Temimah ibid., Deut. 22:5:2, n. 41.
[10] https://chabad.info/women/123875/.
[11] Nosson Scherman, The Chumash: The Torah, Haftaros and Five Megillos. Stone Edition, 1050.
[12] “Sheirut Tzeva’i le-Nashim,” She’eilot u-Teshuvot – Sheirut Tzeva’i le-Vanot ve-Sheirut Leumi, http://www.emunahisrael.com/2015/12/blog-post.html.
[13] Yaakov Ariel, Halakhah be-Yameinu: Morashtah, Limmudah, Hora’atah, ve-Yisumah, 238.
[14] Kurtz’s interpretation of at least one of those few rishonim he does reference in favor of his opinion is also unconvincing. While Ibn Ezra does refer to natural gender roles, he does do so exclusively in reference to the woman, and not to argue anything about warfare but to assert that women were created to bear legitimate children. This helps to account for the apparent contradiction between the beginning of Ibn Ezra’s comments and their conclusion, which Kurtz acknowledges in a footnote but does not account for.
[15] As a counterpoint to Targum’s position, Kurtz references the positions of Rabbis Weinberg and Henkin, who “both assume that tefillin and tzitzit, respectively,are no different than any other gender-specific garment” and therefore conclude that “the woman’s alternative intent (to fulfill a mitzvah) would be a legitimate basis to permit her wearing it.” This contrast misses the commonplace intermediary position that prohibits women from wearing tefillin and tzitzit under all circumstances, but for reasons entirely unrelated to lo yilbash.

It is also interesting that Kurtz does not cite the example of men’s depilation of pubic and armpit hairs, which a minority of Ashkenazic authorities saw as objectively prohibited.
[16] Deut. 226.
[17] Yehuda Henkin, “Nesiat Neshek al Yedei Nashim ve-Sheirutan ba-Tzava,” Tehumin, Vol. 28, 271–3.
[18] Daniel Wolf, “Sheirut Mashmauti le-Nashim be-Sheirut Leumi u-VeTzahal, Chap. 3 – Issur Nesiat Neshek,” Beit Hillel: Hanhagah Toranit Keshuvah, Vol. 7, 12–14.
[19] “Giyyus Banot le-Tzahal? Zo Lo She’eilah Hilkhatit,” Kipa, 26 Dec. 2013, https://g.kipa.co.il/843483/e/.
[20] Zviki Noyman, “Shinuyyim be-Yahas shel ha-Tziyyonut ha-Datit le-Giyyus Nashim le-Tzahal,” Hebrew University, 2016, https://public-policy.huji.ac.il/sites/default/files/public-policy/files/zvikinoymanthesis.pdf, 61-66.
[21] Yabia Omer, Yoreh De’ah 6:14. As R. Yosef and others point out, and as noted by R. Shlomo Eidels (Maharsha, Hiddushei Aggadot, Nedarim ad loc.), this also appears to be the implication of Nedarim 49b, which records that R. Yehudah ha-Nasi and his wife shared a cloak.