For 67 years, key documents in the history of the Israeli LGBTQ community were tucked away in the country’s state archives. One of them, bearing the unusual title “Castration Surgery,” is a legal opinion submitted by Attorney General Haim Cohen to the Health Ministry in 1954. In it Cohen declared that it would not be permissible for Rina Natan, the country’s first known transsexual woman, who'd petitioned the Health Ministry to undergo sex-reassignment surgery (once referred to as “sex change surgery”), to undergo the operation. Due to his opposition, she kept harming herself while attempting to carry out the surgery – eventually causing life-threatening injuries and forcing a hospital to carry out the procedure.
In the decades that followed, Cohen was perceived as the “bad guy” in this story, since because of his legal opinion – the full text of which was previously unknown – transgender women were not permitted to undergo sex-reassignment surgery locally and had to travel abroad for it. The regulations were changed in 1986 to permit such surgery in public hospitals in Israel, subject to the approval of a special committee.
But now, thanks to pioneering research by a B.A. student of history at Tel Aviv University, which also uncovered a letter by Cohen, the full picture is being revealed. And it actually is a surprisingly positive one, in terms of the LGBTQ community, reflecting the approach of the then-attorney general, who went on to become a Supreme Court justice and a human rights activist.
“These documents change everything we had thought in existing historical research, whereby Haim Cohen was perceived as a very negative figure in transgender history,” says the student, Lilla Attar.
“This is a very significant discovery. Attar located documents that we’ve been searching for, for a long time,” adds Prof. Iris Rachamimov, a transgender historian and scholar of gender and LGBTQ history.
A review of the archival documents unearthed by Attar, revealed here for the first time, raises several interesting points. First and foremost, the fact that Cohen wrote that, although the existing law did not permit Rina to have the surgery, he was working to amend it so that the operation could be performed in the future. While the change of legislation was never made, the documents show that he intended for it to happen.
“I believe that this needs to be remedied and in the new criminal code, which we are now drafting, we will strive to ensure that all of these problems find their legal solution,” he writes in a letter under the heading “aesthetic operations,” which was sent to various professional bodies at the end of 1954. Cohen explained that the reason he could not approve the operation for Natan was not due to any personal or professional opinion, but because he sought to abide by the existing law – which, as he noted, was outdated and not suitable for the current times.
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“Our criminal law, whose source is in a codex written by a judge in England 70 years ago, is almost entirely built upon precedents from what was standard English law even before it was drafted,” he explains in the letter that was discovered. “Needless to say, in those days they did not yet know what aesthetic surgery was, and from then until now, if my memory does not deceive me, the question of the legality of this operation never once came up in court in England or in Israel.”
For her part, Attar, the student, says Cohen was indeed concerned that there was no justification for such a procedure according to the 19th-century English criminal statutes that still applied in Israel – but he also worried about the bodily injury the surgery could cause. “The surgeons would be committing a criminal offense if they performed the operation,” she says.
But what is truly noteworthy here is the attorney general’s presumption that Rina Natan did not suffer any physical or mental illness – a very progressive attitude for that time, which only became accepted decades later around the world in cases of persons seeking what is referred to as gender affirmation surgery.
“The patient does not suffer from any organic illness, neither physical nor mental illness. But his mental suffering is due to not having been born a woman, and that suffering is to the degree of impairing his ability to work,” Cohen writes in the letter, later adding, “the patient’s desire to have the appearance of a woman has not been satisfied… The proposed surgery is not required in the name of curing the patient of his illness or preventing the illness from affecting his general health, for we dissent from the assumption that the patient in question suffers from any illness.”
Having said all this, in concluding his legal opinion, he still declined to approve the requested operation: “According to the law, no doctor in Israel is permitted, in this case, to castrate him and operate on him as proposed, even with his consent.”
Rina Natan, the person behind these legal discussions, was a tragic figure who went on to become one of the symbols of the LGBTQ community in Israel. Born in Germany in 1923 as Gershon Natan, she described herself as feeling “an emotional imperative to wear women’s clothing and act like a woman in every way.”
After World War II, she immigrated to Israel and moved from one kibbutz to another, after being banished because the members refused to house her in either the men’s quarters or the women’s quarters. During the War of Independence, she served as a medic. Subsequently, she struggled to fit in, in society and the labor market. Her name made headlines in 1953 when she was arrested for being dressed as a woman.
“A young man, 29 years old, wearing elegant women’s clothing and all dolled up, was arrested by the Tiberias police, who suspected him of having criminal intentions,” Haaretz reported at the time. “I am a woman in my soul and my feelings,” Natan told the police detectives, according to the article. “I was only born a man due to a physiological error.”
The Haaretz writer met Natan detained in a cell, standing before a mirror in a green silk dress – and shaving. “From the time he was a child, he felt an emotional need to wear women’s clothing and to act like a woman in every way and even once tried to correct the mistake by self-surgery, but the operation did not succeed,” he reported.
“Natan waged a tenacious battle against the state authorities for five years and paid a very high price, including being committed to a psychiatric institution, being forced to receive testosterone injections and being arrested for ‘disturbing public order,’” Prof. Rachamimov explains.
Natan’s struggle to obtain permission for sex-reassignment surgery in those years was unsuccessful. “She wrote to the Health Ministry and asked them to allow her to have the operation,” Attar says. “A committee of mental health experts concluded that she should receive approval for the operation ‘for reasons of spiritual hygiene.’” But then when the case came before Haim Cohen, he ruled that the procedure could not legally be performed.
In 1956, Natan was rushed to Assaf Harofeh Hospital after she cut her genitals. “Nothing will be of help this time, and you are obligated to perform surgery on me – to take away the unnecessary organs and make me a woman,” she told the doctors.
And thus Natan entered the history books as the first transgender woman in Israel to undergo a operation. Local newspapers at the time described her as a “man-woman.”
In 1958, she returned to Germany. As she boarded the plane, she reportedly said: “Don’t pay attention to the fact that my passport says ‘Mister’ – I am a woman.” Back in her native land, she drifted away from Judaism and married a man. She died in 1970 at age 56.
The discovery of this historical documentation improves Haim Cohen’s image in the eyes of the local LGBTQ community. It is also in keeping with his liberal legal attitude toward the issue of mishkav zakhar (homosexual intercourse) at the time. In the 1950s, Cohen directed the state prosecution and the police not to investigate and/or charge men of legal age for having homosexual intercourse “in private” and “by consent,” even though such relations were outlawed at the time by criminal law. “This directive was brave and innovative for its time,” legal expert Ayelet Levin wrote in an essay published as part of the 2019 documentary project “Shorashim Bamishpat” (“Roots of Law”), initiated by former Deputy Attorney General Dina Silber.
Years later, Cohen explained what was behind his unusual approach: “As attorney general, I gave the ‘infamous’ directive that the police should not handle such cases [i.e., of homosexual relations], even though the law is the law. Of course, it is not desirable for the attorney general to issue a directive to not uphold the law. But I had tried earlier to get legislation to this effect passed in the government and I did not succeed, and I thought that it was my duty not to uphold a law that I felt was immoral.
“We called upon German judges not to carry out the Nazis’ laws that they deemed to be anti-moral, and I think it is the duty of a judge and an attorney general not to lend a hand to the execution of laws that, in the best assessment of their conscience, are immoral,” he said.
Levin wrote that “the ability, by means of one brave decision, to bring about such a dramatic change in people’s lives, and to give weight to considerations of justice and morality in the framework of an administrative judgement, in order to protect individual liberty and human rights, attests to the tremendous power held by the attorney general and the great importance of wielding this power wisely and cautiously, but also with a large degree of courage.”
Cohen was not able to bring about that sort of change in legislation regarding transgender people. However, the recently discovered documents at least show that he wished to bring about such change. Attar says it is also interesting to trace how attitudes toward this subject have evolved in the Justice Ministry and Knesset over the years. For example, in the wake of the work by a governmental committee on the advancement of transgender community in Israel, also headed by Dina Silber – guidelines have been formulated that will permit transgender people, even if they have not undergone sexual reassignment surgery, to change their gender as listed in the Population Registry. Moreover, a recommendation was made to add the category “other” in addition to “male/female” on government forms.