Immersion, Dignity, Power, Presence and Gender
A Tale of Female Conversion in Five Parts
Recent events have raised many questions about conversion, ethics, power structures and the state of the American rabbinate. But at the heart of the storm is a story about men empowered to have supervisory control over women’s exposed bodies as part of the process of conversion. Even without the scandals and abuses of power, many reasonable people have asked: Why are women immersing in the nude in the presence of male rabbis in order to become Jews? How prevalent is this practice? And what are some possible pathways forward for thinking about these issues differently from within the discourse of Jewish law?
In this longer article, I analyze the core texts that anchor this discussion. What follows is an off-the-page survey of the various issues that arise. All of the arguments and analyses that I offer below are sourced in the longer article, which invites the reader to confront the texts directly and to engage with the complex issues at hand.
A simple reading of the Shulhan Arukh explains how and why we have a situation where the bodies of female converts would be exposed in the presence of a court of three men. The components are as follows:
Shulhan Arukh YD 268:2
…We immerse the convert with a proper immersion without any barriers between the body and the water…and three men…stand above him and inform him of a selection of less and more severe mitzvot a second time, while he stands in the water. In the case of a woman, women place her in the water up to her neck, and the judges stand outside and inform her of a selection of less and more severe mitzvot while she sits in the water. And then she immerses in their presence and they avert their faces and leave, so that they will not see her when she comes up out of the water…
Shulhan Arukh YD 198:1
[A niddah] must immerse her entire body all at once. Therefore there must not even be the slightest barrier between her and the water…
Shulhan Arukh YD 268:3
All matters related to the convert, whether informing him of the mitzvot so that he will accept them, or the circumcision or the immersion, must be in the presence of three who are valid to serve as judges…
Shulhan Arukh HM 7:4
A woman is invalid to serve as a judge.
The cumulative effect of these passages is that a female convert must immerse all at once in water, naked, in the presence of three men, who function as a court. When we break down this picture into its components, we can understand how these laws came about, identify the values underlying them, probe them for nuance and complexity and see how they might be applied in our own day.
Part I: Why do converts immerse in water?
One of the most basic question surrounding conversion is: why is immersion a part of this process at all? How do we know that water plays a key role in becoming a Jew?
Immersion emerges in the classical rabbinic period as a central rite of conversion, as a ritual mainly anchored in the practice of removing ritual impurities was exported to this more metaphorical context of status change. Rabbinic texts consistently assume without exception that conversion to Judaism is an embodied process. A key element of becoming a Jew, as understood by our Sages, is that one acquires a Jewish body. Immersion, especially for women, who do not go through circumcision, anchors an embodied transition from a Gentile to a Jewish state and is a critical element of any conversion in a rabbinic framework.
Part II: Why is immersion done naked?
For many, even stranger than the fact of immersion is the way it is done: wearing nothing. Why is it done this way and how rigid is that requirement?
Rabbinic sources understand the Biblical requirement to wash the body to entail immersing in the nude, such that all of the body comes into contact with water at once. Immersion creates an experience that echoes rebirth, as the body enters entirely into water and then emerges. Just as an infant emerges naked from the amniotic sack and begins life anew, so the one who immerses in the mikveh experiences a significant transformation through nude immersion that would not be captured by a more serial washing of the body. While nude immersion ensures simultaneous contact of all parts of the water with the body, this can also be accomplished when wearing clothing that allows water to come into direct contact with all parts of the body. Such immersions have been validated since the Talmudic period and a number of authorities recommend clothed immersion when it will preserve the dignity of the person who is immersing.
Part III: What is the role of a court in conversion?
Conversion to Judaism, as experienced today, involves rabbinic authority. Specifically, a beit din—a court of three—ultimately oversees and validates the process of conversion. Where does the notion that a beit din is required for conversion come from? And how essential is this requirement?
The requirement for a beit din—a Jewish court—as part of conversion emerges during the Talmudic period. By the end of that period, it is settled law that a court of three should be a part of this process. Debate continued over the following questions: How non-negotiable is this requirement? Must the court be present for the immersion itself, or can the requirement for a beit din be met during a separate phase of accepting the obligations of mitzvah observance?
The discussion essentially comes down to how one weighs two basic approaches: that of the Tosafot, 12th-century French commentators on the Talmud, and Maimonides. Tosafot argue that the beit din’s role is central in the context of the convert’s acceptance of the burden of mitzvot but ancillary for the act of immersion. By contrast, Maimonides thinks there is no separate stage of accepting mitzvot; rather, the immersion itself constitutes this acceptance and therefore, the beit din must be physically present for this process. According to Tosafot, an immersion without a beit din can be valid; for Maimonides, it cannot. Modern authorities split on how appropriate it is to rely on the Tosafot’s approach in the case of female conversion, where immersion in the presence of three men for the immersion may feel uncomfortable or unseemly. While some significant authorities—including R. Uzziel, the former chief rabbi of Israel—seem to have embraced this approach, R. Moshe Feinstein and R. Ovadiah Yosef soundly rejected it.
Recent scholars, such as Michal Tikochinsky have attempted to reopen this debate, though a few parameters are likely to define such a reopening. First, any approach that completely ignores the approach of Maimonides is unlikely to draw widespread support, given the traction his position has received over time and given the bold and disputed nature of Tosafot’s assertion that there is a phase of mitzvah acceptance separate from the act of immersion itself. Second, any attempt to classify all cases of female conversion as a pressing circumstance that should be governed by post facto standards may be hard for many to swallow. This likely means that people will seek a policy that does not treat female conversion as an uncomfortable compromise to deal with, but as something that, even if it has different rules than male conversions, is embraced wholeheartedly and without legal reservation.
Part IV: If the court’s role extends to immersion, what counts as being present?
If the beit din merely needed to be involved in the immersion, to guide it, to instruct it, to ensure that the convert was proceeding with the intention of fulfilling its requirements, the contemporary discussion would be much less charged. The heart of the matter surrounding a male beit din and female converts centers around an assumption that the male beit din must be in the room when the female convert immerses. Where does this come from and is there any room for nuance in this regard?
The Talmud seems not to require that the beit din be in the room when a female convert immerses; indeed it seems to forbid it. This reading of the Talmud seems to have been adopted by many great medieval authorities, including those prior to Maimonides and those who lived in Ashkenazi legal cultures shielded from his influence. Maimonides, by contrast, seems to require that the beit din witness the immersion itself. The language he uses suggests that this happens by entering the room in which the female convert will immerse, though the source for this requirement of his is unclear. Some argue for a basis in the Talmudic text, whereas others see historical factors as paramount. Either way, the Shulhan Arukh adopts the Rambam’s language, leading most later interpreters to assume that he adopts the Rambam’s standard in this regard. Whether Rambam’s definition of presence is non-negotiable is less clear; one might be able to argue that in pressing circumstances even he would consider a court that stood immediately outside the immersion room to count as being in the presence of the immersion, at least when no other alternative is viable. In fact, in one responsum, now receiving renewed attention, R. Moshe Feinstein may well suggest this very reading. These sorts of flexible readings of Rambam combined with the weight of Tosafot’s approach are the most promising avenues for reevaluating the requirement for physical presence of the beit din during immersion.
Part V: Why not just have a court of women?
Of course, much of the concern that has arisen is specific to the opposite-sex nature of the interaction between a male beit din and a female convert. The impropriety of such interactions is felt all the more acutely in communities with otherwise robust codes around opposite-sex interaction. This entire issue could be resolved if women were simply allowed to function as members of the beit din. Why wouldn’t they be?
Devorah is a famous example of a Biblical judge. Other narrative rabbinic sources similarly affirm the notion that a woman could be a judge. Nonetheless, women were classically excluded from testimony not only in ancient Rome, but in rabbinic law, and several statements indicate that anyone barred from serving as a witness cannot serve as a judge. In the schools of the Tosafot, there was some disagreement as to how to synthesize these two strands of tradition. Some voices among the Tosafot argued that women were valid as judges and dismiss the texts the potentially imply a contrary holding. Others saw Devorah as an exception who either lacked coercive power or who was singled out by God, leaving a default rule disqualifying women from serving on a court. The Shulhan Arukh comes down on the side of those who forbid. Some later authorities assert that this debate was not fully resolved and the inclusive position might still have a role to play in a broader halakhic deliberation. In the modern period, some rabbis sought to argue for the validity of female judges, though the broad contours of halakhic consensus remained opposed. In the contemporary world, however, dramatic shifts in gender roles seem to invite a reassessment of that consensus, which may not be an appropriate application of halakhic principles and values to contemporary reality. Specifically, if the category of “women” in these discussions is fundamentally sociological, as opposed to biological, the dramatic shift in the status of women in society may mean that even authorities who forbade women from judging in the past might agree to their validity today.
Conclusion: Possible pathways forward
A growing chorus of voices in recent years has found the black-letter law practice we began with to be objectionable and untenable in our current environment. Recent scandals have only led to great conviction among many that the era of women immersing in the presence of men must come to an end.
One point is certainly fixed: Conversion to Judaism, in a framework faithful to rabbinic texts and values, necessarily requires an immersion where water comes into contact with all parts of the body at once.
Another point seems only mildly open for discussion, at least when considered on its own. One voice in the Tosafot indeed suggests that the beit din is not essentially connected to the act of immersion, and the Shulhan Arukh seems to endorse this view. However, most medieval voices do not take this approach, including many other voices in the Tosafot themselves, preferring to see immersion as the province of the court as well. Furthermore, the Shulhan Arukh, upon citing the Tosafot, immediately cites Maimonides’ contrary view as well. Moreover, even the Tosafot only seem to endorse their theory in order to uphold a conversion after the fact. There seems to be universal preference for the presence of a beit din for the immersion as well. Therefore, any successful reconsideration of the relative weighting of Tosafot and Maimonides will likely simultaneously reconsider other factors as well.
A few other paths forward remain.
For some, a sufficient option will be to follow the counsel of a number of recent authorities that special loose-fitting clothing become a standard part of the immersion for female conversion. Perhaps male conversions will take on this element as well; for many bodily exposure in same-sex environments is not experienced as totally safe and proper in our contemporary environment, particularly in a case of the power gap present between a court and a convert. Nonetheless, others (both legal authorities and potential converts) may resist such a solution as non-ideal, risking losing the full symbolism of rebirth at the heart of the conversion ritual. Indeed, it is the very vulnerability of nudity—so central to discussions focused on abuse of authority—that is part of the core power of the ritual of conversion through immersion.
Another pathway is to revisit just what the presence of the beit din entails, particularly in uncomfortable situations. For those not influenced by Maimonides, it is clear that the court’s presence immediately outside of the room is sufficient. As long as they speak to the convert about mitzvot while the latter is in the water, the presence requirement has been fulfilled. There was clearly a longstanding tradition allowing this and there are still many conversion courts that practice this way. It may also be the case that later codifiers like the Shulhan Arukh adopted Maimonides’ language without intending to endorse every detail of his presentation. Even according to Maimonides, one might still contend that being immediately outside the room meets his requirements, and R. Moshe Feinstein seems to support this point, though the exact scope of his ruling is unclear. Still, there will be authorities (and perhaps even converts) who will resist this marginalization of Maimonides’ framework, no matter how well textually grounded such resistance might be. After all, the Talmud does demand that the beit din be in the room with a male convert, suggesting that physical presence in the room lends more gravity and meaning to the immersion than when the court stands outside.
There is a final pathway. The most elegant, direct and, in some ways, honest solution to the problem is to articulate the validity of women to serve as judges on rabbinic courts. In many cases, all concerns would be addressed if the prospective convert only needed to be exposed to authority figures of the same gender. And such an approach would also tackle head-on some of the underlying gender-power concerns that have animated many public discussions of the topic. Many would then feel that no compromises would then be needed around nude immersion or the physical presence of the beit din. The halakhic pathway to such an articulation is to assert (minimally) a doubt with respect to the ongoing vitality of the disqualification of women from witnessing and judging in our contemporary society and to combine this with a second axis of doubt stemming from the medieval and modern positions that validate women as judges even without a wholesale reevaluation of the social categories of gender. For some, this sort of ספק ספיקא—permission generated through two axes of doubt—may be sufficient to resolve the issue comprehensively. Not all will buy this logic—at least at this point in history—and will find the honesty and transparency of this approach to be outstripped by what they perceive to be its discontinuity from the deep and immediate past.
Each of these pathways has great merit along with some expected avenues of resistance. Therefore, perhaps most important will be a flexibility and willingness to consider multiple factors of flexibility working in tandem to allow for new possibilities. For instance, Michal Tikochinsky has argued for essentially having conversion courts of three men and three women, with the men standing right outside the immersion room while three women supervise the female convert, who immerses in their presence. The argument (as I would put it) would be: Women are plausibly valid to serve as judges in today’s world according to all opinions, and even if not, they are functioning as emissaries of the beit din. Even if such a function is not meaningful, the beit din of men can be certain on their account that the immersion has taken place, making it as if they were in the room. Even if this is insufficient, perhaps the beit din doesn’t need to be there at all. And if such an arrangement is still not quite comfortable enough for the female convert, perhaps having her immerse in loose-fitting clothing will assuage some of those concerns as well.
But key will be to recognize that not every convert, nor every community, nor every rabbinic authority will feel comfortable with a single, uniform approach. Our only hope to move forward—as is usually the case with halakhah—is to take in the entire picture, to internalize the values of our sources, even as we appreciate their deep nuance, and to do our best to accept after the fact as valid even conversions that we might have performed a little bit differently ourselves.
Read more: Immersion, Dignity, Power, Presence and Gender | Ethan Tucker | The Blogs | The Times of Israel http://blogs.timesofisrael.com/341266/#ixzz3IDnVNEd3