Tuesday, November 04, 2014

Immersion, Dignity, Power, Presence and Gender

Immersion, Dignity, Power, Presence and Gender:
A Tale of Female Conversion in Five Parts
Rabbi Ethan Tucker, Center for Jewish Law and Values, Mechon Hadar

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?  What follows is an effort to give an overview of the core issues involved and to suggest some different ways of thinking about this topic.

Introduction—Black-letter law

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:

שו"ע יורה דעה רסח:ב
...מטבילין אותו טבילה הוגנת בלא חציצה...ושלשה...עומדים על גביו ומודיעים אותו מקצת מצות קלות ומקצת מצות חמורות פעם שנייה, והוא עומד במים. ואם היתה אשה, נשים מושיבות אותה במים עד צוארה, והדיינים מבחוץ, ומודיעין אותה מקצת מצות קלות וחמורות, והיא יושבת במים, ואח"כ טובלת  בפניהם והם מחזירים פניהם ויוצאין, כדי שלא יראו אותה כשתעלה מהמים...

שו"ע יורה דעה קצח:א
צריכה שתטבול כל גופה בפעם אחת; לפיכך צריך שלא יהיה עליה שום דבר החוצץ. ואפילו כל שהוא...

שו"ע יורה דעה רסח:ג
כל ענייני הגר, בין להודיעו המצות לקבלם בין המילה בין הטבילה, צריך שיהיו בג' הכשרים לדון...

שו"ע חושן משפט ז:ד
אשה פסולה לדון.

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.  Our job is to break down this picture into its components, to understand how these laws came about, to identify the values underlying them, to probe them for nuance and complexity and to see how they might be applied in our own day.

Part I: Immersion—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, in Jewish practice, is an ancient and widespread mode of bodily purification from ritual impurities.  Its metaphoric application to the context of conversion plays out gradually over time in rabbinic sources.

Mishnah Pesahim 8:8 features Beit Shammai discussing immersion in the context of a convert who converts on the 14th of Nisan and then wishes to eat the Pesah offering that night.  But it is far from clear that the immersion there has anything to do with the conversion, as opposed to the release from impurity required to eat the Pesah.  [See the parallel beginning of the Mishnah there: אונן טובל ואוכל את פסחו לערב, where the immersion clearly has nothing to do with conversion to Judaism.]  If anything, it seems like Beit Shammai are unaware of a specific ritual of immersion that is part of the conversion process.

Indeed, in a discussion of male conversion, R. Eliezer is cited in Yerushalmi Kiddushin 3:12, 64d as saying that in any case where either circumcision or immersion failed to happen, הכל הולך אחר מילה/“everything follows circumcision.”  This indicates an awareness of immersion as a potential part of conversion and may already indicate a preference for including it, but is clear that a Jewish man can become a Jew without immersing.  This contrasts with circumcision, which is non-negotiable.  [It is not clear from this text alone what R. Eliezer would say about a female convert.]  R. Yehoshua, by contrast, says אף הטבילה מעכבת/”immersion is also non-negotiable”, thus asserting the centrality of immersion for conversion as well.

Despite this somewhat shaky origin for immersion as a rite of passage, R. Yehoshua’s position wins out over time.  We begin to see the crystallization of the dyad of circumcision and immersion in a range of sources, most prominently the baraita on Yevamot 47a-b, which clearly features both physical processes in series, as well as in the statement of R. Yohanan on 46b: לעולם אינו גר עד שימול ויטבול/“a person can never be a convert unless they are circumcised and immersed”.  In the Bavli, this view is attributed to חכמים, giving it a more secure place as a required ritual.  Also noteworthy in this regard is the view of Rabbi cited in Sifrei Bemidbar 108, who states that the Israelites’ ancestors entered into the covenant through, among other things, immersion.  He states that converts do the same.

A number of rabbinic stories also insist on and assume immersion as a requirement.  On Yevamot 46b, Rabbah reports an incident where a prospective convert was told to immerse by R. Hiyya b. Rabbi.  On 45b, two stories in the name of R. Asi and R. Yehoshua b. Levi validate conversions by claiming that there was an immersion that happened at some point.

With respect to female conversions, the Talmud Bavli makes its perspective clear.  In contemplating how the first generation of women became Jewish when standing at Mount Sinai, the Talmud asks and answers as follows:

בבלי יבמות מו:
טבילה באמהות מנלן? סברא הוא, דאם כן, במה נכנסו תחת כנפי השכינה?

Talmud Bavli Yevamot 46b
How do we know that our maternal ancestors immersed?  It is common sense, for if not, how else would they have entered under the wings of the divine presence?

Though the precise origin of the requirement of immersion as part of conversion is hard to anchor in any ancient text, the Talmud here helps us understand its necessary centrality, particularly for women.  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.  While some early sages—like R. Eliezer—thought that circumcision alone might be able to effect this transition for men, women needed an alternative.  That alternative was immersion in water.   And ever since the Talmudic period, this has been a bedrock, non-negotiable element of conversion to Judaism for both men and women.

Summary: 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.  Immersion signifies an embodied transition from a Gentile to a Jewish state and is a critical element of any conversion.

Part II: Dignity—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?

The use of water in order to effect purification and status change, is mentioned in the Torah in a number of places.  In most places it is described with the words ורחץ במים/“He shall bathe in water” or ורחץ את בשרו במים/“He shall bathe his flesh in water.”  These phrases alone might only indicate washing a part of the body, perhaps the part that is the source of impurity or that directly contacted it.  But, when discussing a man with a seminal emission, the Torah phrases the requirement to bathe as follows:

ויקרא טו, טז
וְאִ֕ישׁ כִּֽי־תֵצֵ֥א מִמֶּ֖נּוּ שִׁכְבַת־זָ֑רַע וְרָחַ֥ץ בַּמַּ֪יִם אֶת־כָּל־בְּשָׂר֖וֹ וְטָמֵ֥א עַד־הָעָֽרֶב:

Vayikra 15:16
Now a man, when there goes out from him an emission of seed, he is to wash in water all of his flesh, and will remain-tamei until sunset.

Rabbinic sources assume that this requirement is not specific to the case of a seminal emission, but that it is a standard for all people and objects that must undergo purification or status change through water.  The entire body must be washed.  In fact, the Sifra uses this phrasing of כל בשרו to go even further: the water used for washing must be of sufficient quantity that the entire human body could fit into it at once:

ספרא מצורע - פרשת זבים פרשה ג פרק ו הלכה ג
את כל בשרו, מים שכל בשרו עולה להם וכמה הן אמה על אמה ברום שלש אמות נמצאת אתה אומר שיעור המקוה ארבעים סאה.

Sifra Metzora Zavim Parashah 3 Perek 6 Halakah 3
“All of his flesh”—Water that his entire body could fit in.  How much is that?  Three cubic cubits.  From here we learn that the size of a mikveh must be 40 se’ah.

Thus, Jewish ritual baths must contain 40 se’ah of water (the equivalent of 332-573 liters, depending on how you calculate it).  One might still imagine one can accomplish the required act of bathing by serially washing the various parts of one’s body, known in rabbinic terminology as טבילה לחצאין.  The Sifra elsewhere negates this possibility, demanding immersion all at once.  This requirement is creatively derived from the following verse, which describes what impure priests must do before consuming sacred meat:

 ויקרא כב, ו-ז
...וְלֹ֤א יֹאכַל֙ מִן־הַקֳּדָשִׁ֔ים כִּ֪י אִם־רָחַ֥ץ בְּשָׂר֖וֹ בַּמָּֽיִם:  וּבָ֥א הַשֶּׁ֖מֶשׁ וְטָהֵ֑ר...

Vayikra 22:6-7
…he is not to eat of the holy-donations unless he washes his flesh in water; when the sun comes in, (then) he is pure…

On this, the Sifra comments:

ספרא אמור פרשה ד פרק ד הלכה ז
כי אם רחץ בשרו, יכול יהיה מרחיץ אבר אבר ת"ל ובא השמש וטהר מה ביאת שמשו כולן כאחת אף במים כולן כאחת.

Sifra Emor Parashah 4 Perek 4:7
“Unless he washes his flesh in water”—Might it be allowed to wash one limb at a time?  Scripture says: “when the sun comes in, then he is pure”—just as sunset happens all at once, so too [his immersion] in water must be all at once.

These texts thus combine to require that ritual bathing must be immersion of one’s entire body in 40 se’ah of water, all at once.  [There was some controversy in the middle ages as to whether the rules might be more lenient when dealing with a natural spring or other source of seemingly unlimited, living waters.  Rambam ruled that such a natural spring need not have 40 se’ah and R. Meshullam suggests that perhaps טבילה לחצאין is also valid in this sort of spring.]  And this leads to a situation where the person immersing is naked when they do so.  Indeed, quite apart from the various prooftexts that produce this approach, immersion in the nude powerfully simulates a kind of rebirth.  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.

In case there was any doubt that perhaps the rules for immersion for converts are different than for cases of impurity, the Talmud clarifies in a baraita on Yevamot 47b that a convert must immerse in the same sort of water needed for a niddah and that any object considered an obstruction in the context of immersion for purity also constitutes an obstruction for the purposes of conversion.

Immersing in Clothing

However, a person could theoretically be covered in loose clothing and still have their entire body come into contact with the water at once.  Indeed, a Talmudic passage addresses this possibility.  Mishnah Beitzah 2:2 assumes unanimity around a prohibition to immerse objects (like vessels and clothing) on Shabbat and Yom Tov.  On Beitzah 18a, Rav rules that a woman in a state of niddah can circumvent this prohibition by immersing in a piece of impure clothing, thus purifying it at the same time that she immerses herself (since immersion for people is not forbidden on Shabbat and Yom Tov).

While this ruling is focused on the ban on immersion on Shabbat and Yom Tov, it has consequences for the laws of immersion as well: Rav considers immersion while clothed to be a valid immersion.  This point is ruled by a number of later commentators:

רמב"ם מקוואות א:ז
כל הטובל צריך שיטבול כל גופו כשהוא ערום בבת אחת...וכל הטמאין שטבלו בבגדיהן עלתה להן טבילה מפני שהמים באין בהן ואינן חוצצין, וכן הנדה שטבלה בבגדיה מותרת לבעלה.

Rambam Mikvaot 1:7
Anyone who immerses should immerse his entire body while naked, all at once…If any impure person immersed in his clothing, the immersion counts, because the water enters the clothing and it does not constitute a barrier, and so too a niddah who immersed in her clothing is permitted to her husband.

רא"ש מסכת נדה הלכות מקוואות סימן כח
נדה יכולה לטבול בבגדיה לפי שהמים נכנסין תחת הבגדים

Rosh Niddah, Mikvaot #28, R. Asher b. Yehiel, Germany/Spain, 13th c.
A niddah can immerse in her clothing, since the water comes in under the clothes.

Rambam’s language is cited in the Shulhan Arukh:

שו"ע יורה דעה קצח:מו
נדה שטבלה בבגדיה מותרת לבעלה.

Shulhan Arukh YD 198:46
A niddah who immerses in her clothing is permitted to her husband.

R. Eliezer b. Natan (Germany, 12th c.), in Ra’avan #327, argues that the validity of the immersion is dependent on the clothing being loose, such that the water indeed comes into contact with the body.  R. Shabbetai Kohen (Poland, 17th c.), in Shakh YD 198:56, cites this as a limiting factor.  Nonetheless, others, such as Ma’adanei Yom Tov on Rosh above, seem to claim that no clothing would really block water from getting the body wet.  R. Moshe Feinstein (United States, 20th c.), in Responsa Iggerot Moshe EH 4:23, seems to think that a bathing suit does not constitute a barrier between the body and the water, at least on the level of retroactively invalidating an immersion.

If we followed Rav’s language of נדה מערמת וטובלת/“A niddah can circumvent the law and immerse”—which sounds like a prescriptive endorsement of the validity of such an immersion—it would seem that one simple alternative would be for female converts to immerse in clothing in the presence of a beit din of men.

Nonetheless, many understand immersion in clothing to be valid only after the fact, arguing that Rav only permits such an immersion when there is a need for pure clothing, Rambam, they argue, deliberately uses the language of עלתה להם טבילה, which sounds post facto, Rosh Niddah Be-kitzur #2 assumes that normal procedure is for women to disrobe when they immerse for niddah, and Shulhan Arukh uses the post facto language of נדה שטבלה.  Of course, even if this is correct, the simplest argument is that these sources all deal with cases of a niddah, where men need not (and generally should not) be present.  Arguably, the case of a female convert, where many think that a court of three men must be present for the immersion, is intrinsically בדיעבד, a non-ideal situation to which post facto rules ought to apply.  Indeed, Ra’avan seems to make just such an argument:

ראב"ן נדה סימן שכז
ואשה שיש לטבול במקום שבני אדם עומדין אם טובלת בסדין או בחלוק רחב עלתה לה טבילה, כדאמר [חולין ל"א] נדה שנאנסה וטבלה רב אמר טהורה לביתה וכו' ואוקימנא בנפלה מן הגשר, אלמא טובלת בבגדיה ועלתה לה טבילה. ודכוותה אמר רב [ביצה י"ח א] נידה שאין לה בגדים אחרי טבילה להחליף מערמת וטובלת בבגדיה בשבת או ביום טוב כדי להטבילם עמה...אלמא נידה טובלת בבגדיה ע"י דוחק כי הכא דנפלה או אין לה בגדים, הכא נמי מפני דוחק בני אדם שעומדין שם על הטבילה אם טבלה בבגדיה טבלה. ודוקא אשה בבגדים שהן רחבים שכך היה מנהג נשים שלהן כמו שעדיין נוהגות הנשים של ארץ כנען, אבל איש בבגדים שהן קצרים ודבוקין לבשר ולא מצי מיא עיילי לה או אשה בזמן הזה בבגדים קצרים לא, מדנקט נדה ולא זב או טמא אחר שמע מינה דאיש בבגדיו קצרים לא. ומיהו בין איש ובין אשה בסדין שרי משום צניעות דהא עיילי מיא ביה.

Ra’avan Niddah #327
If a woman must immerse in a place where people are standing, her immersion counts if she immerses in a sheet or a robe.  As it says [on Hullin 31], “If a niddah immersed unintentionally, Rav says she is permitted to her husband”…The Talmud understands that ruling to apply to a case such as her falling off of a bridge [in which case she was clearly clothed].  Therefore, she can immerse in her clothing and the immersion counts.  Similarly, “Said Rav: A niddah who has no [pure] clothing to change into after immersion can subvert the law [against immersing clothing on Shabbat and Yom Tov] and immerse in her clothing on Shabbat or Yom Tov in order to immerse them with her.”  Therefore, a niddah can immerse in her clothing in pressing circumstances, as in a case where she fell into the water or she has no clothing.  Here too, in the pressing case where there are people standing in the place of immersion, if she immerses in her clothing, she has immersed.  But this is only true of a woman in clothing that is broad, since such was the dress of their women—as is the practice of Bohemian women in our own time.  But with respect to a man in narrow clothing that is skin tight such that water cannot enter, or women today who wear arrow clothing, this leniency does not apply.  Since [Rav] only speaks of a niddah and not of a zav or another impure person, we learn that a man in short clothing cannot do this.  Nonetheless, whether a man or a woman, it is permitted to immerse in a sheet on account of tzniut, since water can penetrate.

While Ra’avan does not address a case of a female convert, the logic would seem to apply: given the concern for tzniut, it is valid to plan an immersion in loose-fitting clothing such that doing the immersion in the presence of a male beit din will not be improper.  This logic is adopted by R. Yitzhak Ya’akov Weiss (Galicia/England/Israel, 20th c.) in Responsa Minhat Yitzhak 4:34; he suggests that female converts immerse while clothed in front of the beit din.  But in order to accommodate the seeming ideal to immerse in the nude, he suggests that the female convert then immerse again in the nude in the presence of a woman after the beit din has left the room. R. Ovadiah Yosef (Israel, 20th c.), in Responsa Yabia Omer I YD #19, is more lenient, advocating that female converts simply wear a very loose robe where there is not yet a prevailing practice to the contrary.

[I am not addressing here another issue that relates to wearing even very loose items that one would not normally want to get wet.  For instance, what is the effect of wearing a gold bracelet that in no way impedes water from directly coming into contact with the body, but which one would normally remove before getting wet?  There is significant medieval and modern debate surrounding that question, both in terms of what the ideal policy should be and what, if any, effects such objects have on the validity of an immersion after the fact.  Suffice it to say that the sort of robe suggested by Yabia Omer above would not be subject to this sort of concern.  Those interested in seeing a basic survey of this side issue can consult the following sources: Shabbat 57a, Rashi there, Tur YD 198, Beit Yosef and Shulhan Arukh YD 198:3-4, Pithei Teshuvah YD 198:4.]

Summary: 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.  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 penetrate.  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: Power—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?

A number of excellent treatments of the topic have been written in recent years.  Avi Sagi and Zvi Zohar wrote an in-depth book in Hebrew on the history of halakhah around key topics in conversion, including the role of a court in the process.  The book was later also reworked for an English edition.  Sagi and Zohar try to separate out conflicting strands of interpretation surrounding conversion, particularly with respect to the nature and scope of the requirement for the convert to accept the burden of observing mitzvot once a Jew.  Joshua Kulp analyzes the history of this question in classical rabbinic literature.  Kulp’s basic claim is that there is no evidence for a court in the Tannaitic period and significant evidence against.  The notion of converting in front of other Jews has traces in the Tannaitic period, seems to grow in influence during the Amoraic period and only really settles in to a universal assumption by the end of the Talmudic era.  I will touch on a number of texts he raises, but he offers a fuller analysis.  Michal Tikochinsky discusses the role of a beit din in both Hebrew and English versions of an article that deals more broadly with the question of female converts immersing in front of men.  She devotes considerable attention to medieval and modern authorities who discuss this topic.  Tikochinsky argues that we have overlooked various legal opinions that would allow for female immersion in front of a group of three women.  Her more detailed analysis is highly valuable for understanding this topic more fully and its contemporary relevance.

The Pre-history of Courts and Conversion

Tannaitic sources speak loudly through their silence regarding beit din.  There is no Tannaitic text that formally speaks about this requirement, and several that can hardly be recognized as compatible with such a requirement.  Most pointedly, the category of גר שנתגייר בין הגויים/”a convert who converted among the Gentiles” mentioned in Tosefta Shabbat 8:5 clearly points to the possibility of self-conversion in a completely Gentile context devoid of knowledge of basic Jewish practices like Shabbat.  And such a conversion is universally agreed upon as valid in that text.  [See parallel at Sifre Zuta 15:14.]

A number of sources speak of the notion of קבלה/acceptance with respect to converts, indicating some sort of vetting body that decides whether they are allowed to proceed to enter into the Jewish people.  But it is not at all clear that this indicates any sort of formal requirement.  The notion of “acceptance” may be a dreamed-of ideal, wherein the Jewish community and a rabbinic power structure have the ability to control the flow of those converting in in a more stable way.  Alternatively, the language of קבלה may indicate nothing more than the Jewish community’s acceptance of the convert after the conversion.

This latter definition seems to be the dynamic in play in the following text:

ירושלמי קידושין ד:א, דף סה עמוד ב
המתגייר לשם אהבה וכן איש מפני אשה וכן אשה מפני איש וכן גירי שולחן מלכים וכן גירי אריות וכן גירי מרדכי ואסתר אין מקבלין אותן
רב אמר הלכה גרים הן ואין דוחין אותן כדרך שדוחין את הגרים תחילה אבל מקבלין אותן וצריכין קירוב פנים שמא גיירו לשם

Yerushalmi Kiddushin 4:1, 65b
One who converts for the sake of love, whether a man for a woman or a woman for a man, along with those who convert for political benefit, those who convert out of fear of divine punishment or those who convert for fear of the Jews [like in the days of Mordechai and Esther], should not be accepted.
Rav said: The halakhah is that they are all converts and we do not push them away in the same manner that we push away [prospective] converts when they first approach us.  Rather, we accept them and we must draw them close since they may have converted out of sincere motives.

The opening baraita states that converts coming from improper motives should not be accepted.  From Rav’s subsequent statement it is clear that we are speaking about people who have already converted and we are assessing their conversion in retrospect.  It is clear that מקבלין here refers to some sort of acceptance into the community of Israel.  It is less clear as to whether this is in the sense of giving the conversion a stamp of validity (Kulp’s preferred reading—based on the parallel in the Bavli and Massekhet Gerim to the baraita, which reads אינם גרים) or allowing the convert to marry other Jews (Zohar and Sagi’s preferred reading—paralleled by the dynamic in Mishnah Yadayim 4:4).  Either way, this text is important for showing that the term מקבלין need not in any way indicate a court that must administer a conversion in order for it to be valid.

A series of rulings in Tosefta Demai 2:3-7 also clearly use the term מקבלין in this retroactive fashion.  Those rulings deal with various figures who have accepted obligations upon themselves, including a kohen who has agreed to all the rules of the Temple service except one, where the rule is אין מקבלין אותו/“we do not accept him”.  That statement clearly has nothing to do with validating his status as a kohen but rather has to do with allowing him to participate in the Temple service and to eat holy foods associated with it.  In the parallel case of a גר/convert, it is possible the text is speaking about a refusal to recognize his conversion at all in practice, but might also be limited to accepting him for marriage to other Jews.  Either way, there is no evidence here of a court as part of the process of conversion. 

There are a few texts that seem to indicate some kind of vetting process done by some group of people before the conversion begins.  Yerushalmi Demai 2:1, 22c features the phrase גר שבא להתגייר אין מקבלין אותו/“A (prospective) convert who comes to convert is not accepted”, where some sort of קבלה is in place before the process has started.  In the Bavli baraita parallel to Tosefta Demai above on Bekhorot 30b, the language is different and also reads: עובד כוכבים שבא לקבל דברי תורה חוץ מדבר אחד, אין מקבלין אותו/“A Gentile who comes to accept all matters of Torah except for one is not accepted,” which clearly places the קבלה prior to the conversion.  And then in the Bavli’s long baraita on conversion on Yevamot 47a-b, there is clearly some body of people who are giving instructions and warnings in the phase before conversion has begun.  However, while this points to some growing institutionalization of conversion, there is no evidence yet for the need for a court as an element of the conversion itselfTo the extent that conversion is essentially a personal and devotional transition, it would make a great deal of sense to have it be parallel to all other forms of purification and status change, which do not require a court.

Several sources point to rabbis converting (as a transitive verb) people who are coming to them, perhaps indicating increasing rabbinic influence over the process.  Yerushalmi Yevamot 8:1, 8d features a story told by R. Yitzhak b. Nahman about R. Yehoshua b. Levi asking R. Yudan Nesia to stay and help him complete a conversion.  While this is not a story about a court of three, there does seem to be some notion here of desiring or requiring the presence of other Jews (Sages? The Patriarch?) in order to execute a conversion.  A parallel story on Bavli Yevamot 46b reported by Rabbah features a conversion that is delayed until the next day, with the rabbinic protagonist saying ונטבלינך/“and we will immerse you,” indicating a plural group of people who will be involved in the immersion of a male convert.

Finally, the aforementioned baraita on Yevamot 47a-b describing the conversion process has not only an anonymous set of people who instruct and warn the potential convert, but also features שני תלמידי חכמים/”two scholars” who are present for the immersion and instruct the convert prior to this final act.

None of these sources in any way suggests the presence of a court as a sine qua non for conversion.  In fact, we have statements of Amoraim that are clearly incompatible with any requirement of a court.  R. Asi validates the Jewish status of a woman based on a presumption that she must have immersed at some point for the purposes of niddah.  This immersion—the only component of a female conversion—clearly did not take place in the presence of a court.  We thus see an ongoing tradition of validating conversions that happen outside of the context of courts.

One of the earliest explicit sources on the presence of a beit din for conversion is R. Huna’s statement on Ketubot 11a holding that the conversion of a minor is done with the intention of the beit din.  Kulp analyzes this passage at length and suggests that the notion of a court being a part of conversion was already crystallizing in R. Huna’s time and he utilized this fact to solve the problem of how to convert a minor without his or her consent.  We might even suggest that R. Huna was an innovator of the idea of a formal beit din for conversion, as his language almost sounds like a beit din might otherwise not have been involved, if not for the special case of the minor.

However we understand R. Huna, two things should be noted: 1) No source from Eretz Yisrael ever mentions the formal need for a court as part of conversion and 2) there are a number of sources in the Bavli—cited as hailing from Eretz Yisrael—that do assert the importance of a court, and we will now turn to those.

Requirement for a Beit Din in the Babylonian Talmud

The most direct source on this question is a Babylonian baraita, which states, in the name of R. Yehudah, that conversion without a court is invalid:

תלמוד בבלי יבמות מז.
ת"ר: +דברים א'+ ושפטתם צדק בין איש ובין אחיו ובין גרו - מכאן א"ר יהודה: גר שנתגייר בב"ד - הרי זה גר, בינו לבין עצמו - אינו גר. מעשה באחד שבא לפני רבי יהודה, ואמר לו: נתגיירתי ביני לבין עצמי, א"ל רבי יהודה: יש לך עדים? אמר ליה: לאו. יש לך בנים? א"ל: הן. א"ל: נאמן אתה לפסול את עצמך, ואי אתה נאמן לפסול את בניך.

Talmud Bavli Yevamot 47a
Our Sages taught: “You shall judge fairly between a man and his brother and his ger [read here as convert].  Based on this, R. Yehudah said: A convert who converts in a beit din is considered a convert.  A convert who converts on his own is not considered a convert.
Once a man came to R. Yehudah and said to him: “I converted on my own.”  R. Yehudah said to him: “Do you have witnesses?”  He said: “No.”  “Do you have children?” He said: “Yes.”  R. Yehudah said to him: “You are reliable to disqualify yourself, but you are not reliable to disqualify your children.”

Kulp notes that there is a total absence of courts in any discussion of conversion in Eretz Yisrael.  Indeed, a number of other elements of the first part of this baraita seem out of step with Eretz Yisrael traditions.  The word גרו in Devarim 1:16 is never read as referring to a convert in any Tannaitic text.  In addition, there is a parallel to the second half of the baraita here in Yerushalmi Kiddushin 4:7, 66a, whereas there is no parallel to the first half, where the issue of converting with a court is discussed.  Internal to the Bavli text itself, we also see that the second half of this baraita does not match the first part: it speaks about witnesses, whereas the first half talks about beit din.  Also, the subsequent section of Talmud reveals that Amoraim in the Bavli clearly know the latter part of this text and comment on it, whereas there is no Amoraic comment on the first portion.

All of this points to a reasonable conclusion that the first section of this baraita has been refracted through a later Babylonian conception that a court might be critical for conversion.  [This sort of reworking of earlier traditions in Babylonia was already known to medieval commentators and modern scholars have documented it more systematically.  For a good introduction to this sort of analysis, see J. Kulp and J. Rogoff, Reconstructing the Talmud, 23-29.]  In any event, even in this later form, the insistence on a court is only attributed to R. Yehudah, whose position might not be universally accepted.

The most direct piece of evidence demanding a court in all conversions is the statement of R. Yohanan found on Yevamot 46b: גר צריך שלשה/“a convert requires three.”  R. Yohanan seems to have been engaging in some way with the long baraita on 47a-b and its mention of two scholars, who are present for the convert’s immersion, because on 47b he instructs someone to emend the text to read three, in keeping with his view.  This statement itself is not overly focused on a court per se, but requiring three seems to imply a court, and the Aramaic appendage to R. Yohanan’s statement: משפט כתיב ביה, while highly unlikely to be Amoraic, makes this angle clear.

Even a full normative acceptance of R. Yohanan only suggests a desired process—צריך—not necessarily a sine qua nonמעכב.  This last leap is made by the anonymous voice of the Talmud on Kiddushin 62b.  The text there is discussing marriages that are contracted based on future events, such as a Gentile man who gives an object of worth to a Jewish woman and declares that the betrothal will take effect after his future conversion.  The Mishnah declares that such a marriage is invalid.  The Talmud concludes that this is so because a convert is incapable of (not just forbidden from) converting on his own and cites R. Yohanan’s requirement for a court of three as proof.  This layer of interpretation then turns R. Yohanan into a non-negotiable requirement.  This would then complete the transition from a world of self-performed conversions to one in which conversions must be performed by valid rabbinic courts.

As a value statement, this approach removes conversion from the personal realm.  The beit din now functions as a legal, naturalizing body, its authority an essential element of the process of admitting someone to the ranks of the Jewish people.  If the physical acts of conversion are personal and embodied steps taken by the convert, the metaphysical shift in that person’s status is only effected through empowered emissaries of the Jewish people.

Harmonizing Conflicting Precedents in the Babylonian Talmud

Nonetheless, recall that the Talmud reports that R. Asi validated a woman as Jewish by confirming that she had visiting the mikveh in the context of niddah, an immersion at which the court was clearly not present.  How can we reconcile this with the Talmud’s interpretation of R. Yohanan and the non-negotiable requirement for a court?

There are at least nine ways of resolving this tension:

1)      R. Asi and the Talmud’s reading of R. Yohanan are indeed conflicting rulings.  But there is no inherent contradiction between R. Asi and the plain sense of R. Yohanan.  R. Yohanan said צריך but not מעכב; ideally we have the involvement of a court, but it is not essential after the fact.  We do not take the anonymous Talmud’s usage of R. Yohanan in the Kiddushin passage to be determinative of R. Yohanan’s normative meaning.  This seems to be the approach of Halakhot Ketuot cited in Ginzei Kedem V, p 156 (=Toratan Shel Rishonim II:15).
2)      R. Asi and the Talmud’s reading of R. Yohanan are in conflict, and we rule like the Talmud’s reading of R. Yohanan.  Therefore, any conversion done without a court is invalid, even after the fact.  This is the approach of Halakhot Gedolot #8, p. 152.
3)      An immersion done for purposes of conversion is valid after the fact, even if there was no beit din.  R. Asi’s ruling is about seeing immersion for niddah as indicative of a prior immersion for conversion.  But this conversion is valid only with respect to validating facts already on the ground.  For instance, any children born to such a person have full Jewish legal status and presumably existing marriages don’t need to be broken up.  It is likely that any number of stringencies that apply to Jews would apply to this person.  R. Yohanan’s ruling applies to any proactive step we will now take with this convert that will treat him like a Jew, most notably with respect to marrying other Jews, but also with anything we would describe as מנהג גר/“treating him like a convert”.  [This fascinating category is left undefined; it is unclear what, beyond allowing a marriage, it might include.]  These bridges are only crossed upon an actual immersion in front of a court of three.  This is an attempt to balance approaches 1) and 2).  This seems to me the correct reading of the Rif, and Meiri on Shabbat 68b and Rosh interpret Rif in this way as well.
4)      A beit din is always non-negotiable for conversion and without immersion in the presence of three, there is no force to the conversion whatsoever.  However, immersion for the purposes of niddah—and for that matter, any other established pattern of mitzvah observance—is indicative of a prior immersion in the presence of a court.  This establishes a presumption that the person is a Jew, but we only apply this presumption to facts already on the ground.  In order to allow marriage to a Jew, we would require re-immersion in front of a court of three in our presence.  This is Rambam’s view, which represents an extension and further development of the Rif that takes R. Yohanan even more seriously as a non-negotiable element of conversion.
5)      R. Asi’s validation of immersion without a court is because such a public, well-known immersion that everyone is aware of is considered כאילו עומדים שם/“as if the court is standing there.”  This is a view cited in the Tosafot.  In other words, the public nature of the immersion is non-negotiable, but there are other ways for it to be public without actually having a court physically present at the time of immersion.
6)      R. Asi validates immersion without a court, but there is another component that can suffice for the court requirement: קבלת מצוות/“acceptance of mitzvot.”  Having a court present at that phase is sufficient to meet R. Yohanan’s criterion.  This is the view of Tosafot, who invent this stage of קבלת מצוות as distinct from immersion in order to solve the problem of R. Asi and R. Yohanan.  Tosafot Yeshanim clarify that this interpretation only works if we assume that R. Asi’s case featured an earlier קבלת מצוות in the presence of a beit din
7)      A hybrid view of Tosafot and the Rif: Having a court for קבלת מצוות is non-negotiable for a valid conversion.  If immersion was not done in the presence of a beit din (even if קבלת מצוות was), then the convert’s status is validated for all facts already on the ground but cannot be allowed to marry Jews until an immersion in the presence of a court. Ramban holds this view by reading it back into the Rif.
8)      In R. Asi’s case, the immersion was completely up to R. Yohanan’s standards and in fact happened in the presence of a beit din, which is non-negotiable for a conversion.  But because the immersion was not for the purposes of conversion, but for niddah, people used to disparage these converts.  R. Asi defended these converts because they did, after all, immerse in the presence of a court.  This is the view of Ra’ah cited in Ritva and strains the facts of the R. Asi case considerably.
9)      R. Asi’s case was a valid immersion on the Biblical plane, because R. Yohanan’s requirement of three is only a rabbinic-level requirement.  There is indeed a Biblical-level requirement for a beit din, but even one person is sufficient for that, and there was clearly one person present for the immersion.  This is the view of R. Yehudah bR. Yom Tov and R. Simhah, cited in the Mordechai.  See also Or Zarua I:745.  It seems highly implausible that this view is claiming the presence of a man during the woman’s niddah immersion.  Rather, this seems to reflect a view, attested in the world of the Tosafot, that women are valid as judges, at least in this case.  [We will return to this position in Part V.]

Two things should be clear from this analysis.  First, with respect to assessing conversions after the fact, there ought to be a reasonable amount of leeway with regard to validating at least some conversions or at least some facts on the ground even in the context of serious questions surrounding the role and validity of the beit din that was involved in the process.  Approach 1 might be added fodder for validating a questionable beit din situation after the fact.

Second, almost all of the approaches, as a matter of protocol, require that a court attend to the immersion.  For approaches 1-5 and 8-9, the entire essence of the conversion for a woman is the immersion, such that a court must clearly attend to it.  Approach 5 suggests that the requirement for immersion in the presence of the beit din is met if the immersion is clearly known to all to have happened.  Approach 9 opens the possibility that women might be valid to serve as members of the court, but the presence of at least a single valid judge is non-negotiable.  Approach 6 explores bolder territory, suggesting that immersion is not the essence of conversion.  Rather, the acceptance of mitzvot is the core element and it is this that requires a court.  Immersion may not need a court at all.  Approach 7 grants this approach some weight for validating facts on the ground, but ultimately aligns with all of the other approaches as a matter of preferred procedure.

The question surrounding flexibility around the presence of a beit din for the immersion thus comes down to the relative weighting of approach 6 against all of the other approaches.  And much of the analysis of the proper weighting comes down to how to read the Shulhan Arukh.  Here is what it says:

שו"ע יורה דעה רסח:ג
כל ענייני הגר, בין להודיעו המצות לקבלם בין המילה בין הטבילה, צריך שיהיו בג' הכשרים לדון, וביום (תוס' ורא"ש פ' החולץ). מיהו דוקא לכתחלה, אבל בדיעבד אם לא מל או טבל אלא בפני ב' (או קרובים) (הגהות מרדכי) ובלילה, אפילו לא טבל לשם גרות, אלא איש שטבל לקריו ואשה שטבלה לנדתה, הוי גר ומותר בישראלית, חוץ מקבלת המצות שמעכבת אם אינה ביום ובשלשה. ולהרי"ף ולהרמב"ם, אפילו בדיעבד שטבל או מל בפני שנים או בלילה, מעכב, ואסור בישראלית, אבל אם נשא ישראלית והוליד ממנה בן, לא פסלינן ליה.

Shulhan Arukh YD 268:3
Everything to do with a convert, informing him of the mitzvot so he will accept them, the circumcision and the immersion must be done in the presence of three people who are valid to judge and during the day.  However, this is only ab initioPost facto, if the circumcision and the immersion were done in the presence of two people (or relatives) and at night, even if the immersion was not for the purposes of conversion, but a man immersed for a seminal emission and a women immersed for niddah, the person is a convert and may marry other Jews, with the exception of the acceptance of mitzvot, which must non-negotiably have happened during the day and in the presence of three. 
But for Rif and Rambam, if the immersion or the circumcision happened in the presence of only two or at night, the conversion is invalid and he may not marry a Jewish woman, though if he already married a Jewish woman and had a son with her, we do not disqualify him.

The Shulhan Arukh in fact begins by codifying approach 6, tolerating the validity of a conversion where no beit din was present for the immersion.  Only then does he cite Rif and Rambam’s more exacting standards in this regard.  Several later authorities argued that this signals a holding like approach 6 and therefore creates room for leeway when female immersion in the presence of men is untenable.  The well-established principle of שעת הדחק כדיעבד דמי/“pressing cirumstances are treated like a post facto situation” might lead one to claim that, in such pressing circumstances, the presence of a male court of three is only required when it is non-negotiably required for the conversion to be valid.  If the Shulhan Arukh endorses approach 6, then perhaps we can forgo the presence of the court at the immersion if it will create a difficult or inappropriate situation.  This is the core of the approach of R. Uzziel in Responsa Mishpetei Uzziel YD I:13.  Tukochinsky analyzes this source in depth, but its basic argument is to shore up approach 6 as dominant, to see the presence of the beit din as only truly critical for the phase of accepting mitzvot (even according to the Rif and the Rambam), and to argue that the improprieties involved in having a beit din at the immersion of a female convert warrant following post facto standards in this area.  He aims to accommodate the views of Rif and Rambam by instructing the beit din to appoint three women to administer the female convert’s immersion, such that they will function as emissaries of the beit din.  This has the effect of marshaling approaches 5 and 9 to the cause as well.  Tukochinsky cites a few other sources that look favorably on this approach as well.

R. Uzziel’s approach makes a great deal of sense as an attempt to look at the full scope of opinions here, though he blurs some lines while doing so.  In particular, Sagi and Zohar demonstrate that there is no such thing as קבלת מצות outside of immersion for anyone other than the Tosafot and their intellectual descendants.  Therefore, any attempt to say that Rif and Rambam would ultimately concede that immersion can happen without a court as long as קבלת מצות happened with one is fundamentally flawed.  R. Uzziel can only be shored up by seeing him as ultimately convinced by the Tosafot’s approach and the combined wisdom of approaches 5, 6 and 9, even as he perhaps oversteps by reading these preferences back into the Rif and the Rambam.

For this reason, others who are particularly enamored of the Rambam’s approach—and especially those who do not think that the Shulhan Arukh so obviously sidelines it—reject R. Uzziel.  R. Ovadiah Yosef, in Responsa Yabia Omer I YD #19, strongly rejects R. Uzziel’s approach, asserting that the Shulhan Arukh indeed follows Rif and Rambam on this front and does so without any flexibility.  Similarly, R. Moshe Feinstein, in Iggerot Moshe YD 2:127, asserts that a woman who has an immersion without the presence of a beit din is in a doubtful state.  Out of concern for the Rambam’s position—which he does not assume is dismissed by the Shulhan Arukh—he requires a second immersion in the presence of a beit din in order to clarify her status.  [See also Teshuvot Vehanhagot I:621 for a similar view.]

Summary:  The requirement for a beit din 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 the relative approaches of the Tosafot and the Rambam.  Michal Tikochinsky tries to reopen this debate by citing R. Uzziel and an early suggestion of the Tzitz Eliezer, both of whom seem to be fundamentally willing to govern female immersion cases by post facto rules, arguing that the Shulhan Arukh does not negate the validity of conversions that fail to match Rambam’s paradigm.  Anyone insisting that we must accommodate Rambam’s view even in pressing circumstances will balk at any such leniency, as do R. Moshe Feinstein and R. Ovadiah Yosef.

Part IV: Presence—What counts as the beit din 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?

In order to understand the discussion, we must begin with the central Talmudic text that discusses the immersion procedure:

בבלי יבמות מז:
ושני ת"ח עומדים על גביו, ומודיעין אותו מקצת מצות קלות ומקצת מצות חמורות; טבל ועלה - הרי הוא כישראל לכל דבריו. אשה, נשים מושיבות אותה במים עד צוארה, ושני ת"ח עומדים לה מבחוץ, ומודיעין אותה מקצת מצות קלות ומקצת מצות חמורות.

Talmud Bavli Yevamot 47b
…Two scholars stand above him and inform him of a selection of less and more severe mitzvot.  Once he immerses and comes up [out of the water], he is like a Jew for all purposes.
In the case of a woman, women place her in the water up to her neck and two scholars stand outside and they inform her of a selection of less and more severe mitzvot.

This text makes clear that male and female converts do not have the same procedure.  Specifically, while both types of convert receive instruction regarding mitzvot from the scholars while in the water, men receive it as the scholars stand over them, whereas women receive it as the scholars stand outside the room.  A plain reading of the text suggests that the scholars (later understood to be a court of three—see Part III) never enter the room.  They are present, but in the sense of giving the act of immersion meaning and context.  The notion that immersion must be done with intention and proper context is true more broadly, thus giving even more sense to this choreography.  Mishnah Hagigah 2:6 makes clear that immersions for impurity done without any intention are invalid.  By informing the convert of the mitzvot immediately prior to immersion, the scholars assure that this is no mere dunk in a body of water, but an act of physical and spiritual transformation.  The women place the female convert up to her neck in water so that she is as close as she can be to immersion while still able to receive the final charge from the rabbinic figures waiting outside.  The scholars’ brief review of a selection of essential mitzvot immediately prior to immersion bestows meaning on this act and allows this Gentile to become a Jew.  But there is no need for them to be physically in the room in order to accomplish this function.

Another rabbinic source takes for granted that the immersion for conversion is a single-gender affair:

מסכתות קטנות מסכת גרים פרק א הלכה ד
האיש מטביל את האיש, והאשה מטבלת את האשה אבל לא את האיש.

Massekhet Gerim 1:4
A man immerses a man and a woman immerses a woman, but not a man.

The final redaction of Massekhet Gerim is post-Talmudic, though it contains much material that hails from the Tannaitic period.  Whatever its dating, we find here a clear assumption that a woman is the one who supervises the immersion of a female convert.

Indeed, Rif, Rosh and a host of others simply cite the language of Talmud Bavli Yevamot and give no indication that the beit din’s presence has anything to do with seeing the immersion itself.  The sense in which the immersion requires a beit din is that it is given context and content by the beit din, not in the sense of needing to witness the act of the immersion.  For that, the women who are in with the convert are sufficient.  And had the formulation of this law remained in its Talmudic form, such an approach would likely have been entirely uncontroversial.  Indeed, authorities in medieval Ashkenaz seem unambiguously to have taken this interpretive approach.  Consider the following explicit statement from R. Yitzhak b. Moshe (Vienna, 13th c.):

ספר אור זרוע חלק א - הלכות יבום וקידושין סימן תקצח
...ת"ר כל הנבדקות נבדקות ע"י נשים. וכן הי' ר' אליעזר מוסר לאשתו ור' ישמעאל מוסר לאמו ר' יהודה אומר לפני הפרק ולאחר הפרק נשים בודקות אותה [תוך הפרק אין נשים בודקות אותן] שאין משיאין ספיקות ע"פ הנשים ר' שמעון אומר אף תוך הפרק נשים בודקות אותן. ונאמנת אשה להחמיר אבל לא להקל ומסקנא דהא דקתני שאינה נאמנת להקל היינו או ר' יהודה קתני לה. או ר' שמעון קתני לה אבל לר' אליעזר ור' ישמעאל נאמנת אשה אף להקל ושמא הלכה כר' אליעזר ור' ישמעאל משום דמעשה רב ואמר נמי בהחולץ גבי גיורת. אשה נשים מושיבות אותה במים עד צווארה ושני ת"ח עומדים לה מבחוץ משמע שאינם רואים אותה וסומכים בטבילתה על ראיית נשים.

Or Zarua I:598
Our Sages taught: “Any women who need to be checked [for legally relevant signs of sexual maturity] are checked by women.  R. Eliezer used to delegate this to his wife and R. Yishmael would delegate this to his mother.  R. Yehudah says: women can check her [before the age of 11 and after the age of 12, when she is presumed to be either a minor or sexually mature, respectively], but they may not check her between 11 and 12, because we do not allow doubts to be resolved by women.  R. Shimon says: women can check her between 11 and 12 as well.  A woman is trusted [to provide information about ritual status] in order to be stringent, but not to be lenient.”  But this conclusion that we do not trust her in order to be lenient must be according to either R. Yehudah or R. Shimon.  However, according to R. Eliezer and R. Yishmael, a woman is trusted even to be lenient.  And perhaps the halakhah follows R. Eliezer and R. Yishmael, because they acted on their approach.  It also says in Yevamot about a female convert that in the case of a woman, women place her in the water up to her neck and two scholars stand outside.  This implies that they do not see her and they rely on what the women see to validate her immersion.

The Or Zarua takes for granted that the Talmud never requires the men to see the woman immerse, such that he uses this as a basis for establishing women’s general reliability to establish ritual facts!

Rambam’s Innovation

Rambam, however, modifies the Talmud’s formulation in a significant way:

רמב"ם איסורי ביאה יד:ו
ושלשה עומדין על גביו ומודיעין אותו מקצת מצות קלות ומקצת מצות חמורות פעם שנייה והוא עומד במים, ואם היתה אשה נשים מושיבות אותה במים עד צוארה והדיינין מבחוץ ומודיעין אותה מקצת מצות קלות וחמורות, והיא יושבת במים ואח"כ טובלת בפניהם והן מחזירין פניהן ויוצאין כדי שלא יראו אותה כשתעלה מן המים.

Rambam Issurei Biah 14:6
Three men stand above him and inform him of a selection of less and more severe mitzvot once again while he is standing in the water.  In the case of a woman, women place her in the water up to her neck while the judges are outside and they inform her of a selection of less and more severe mitzvot while she is sitting in the water.  Afterwards, she immerses in front of them and they then avert their faces and leave so that they will not see her when she comes up out of the water.

Rambam begins by updating the two scholars to be a group of three, in keeping with R. Yohanan’s correction of the base text.  [See part III.]  But the radical change here is that the three men have now entered the immersion room itself.  Though Rambam preserves something of the original Talmudic text by omitting any reference to the scholars’ entrance into the room, the last line here makes it clear they are there.  Their presence in the room is clearly critical for Rambam, because he now must narrate how they will avoid being in a compromised position when the woman emerges from the water.  Since the Shulhan Arukh cites the Rambam’s language verbatim, understanding his position becomes critical for establishing normative practice.

Where does Rambam get this from?  It is possible that Rambam is simply deeply enamored of the notion that the beit din’s presence—and not just their instruction—is what enables this dunk in a pool of water to turn someone from a Gentile into a Jew.  Taking his cue from the directive to the beit din to stand above the male convert while he is in the water—עומדין על גביו—he may have assumed that this could not be any different for the female convert.  Indeed, in other parts of Rambam’s narrative of conversion, he adds details that are not spelled out in the Talmud, such as the court’s responsibility to review core religious and theological principles (not just mitzvot) with the convert.  Nonetheless, since the Rambam does not typically add details to his codification that do not have some sort of anchor in classical rabbinic texts, others have searched for alternative motivations for this surprising new requirement.

R. Yaakov Ettlinger (Germany, 19th c.) attempts to ground it in the language of the gemara itself:

ערוך לנר מסכת יבמות דף מז עמוד ב
ונ"ל שיצא לו כן מהא דקתני דמושיבין אותה עד צוארה ולמה לו כן אלא ודאי מפנו שצריכים הדיינים לכנוס ולראות טבילתה לכן צריכה שתשב תחלה במים

Arukh LaNer Yevamot 47b
It seems to be that he derived this from the phrase “they place her in the water up to her neck.”  Why would they need to do this?  It must be because the judges must enter to see her immersion and therefore she must first sit in the water…

Arukh LaNer, in an effort to give grounding to the Rambam’s words, argues that the Talmud’s directive to the women to place the female convert in water up to her neck must be to prepare a reasonable modest situation for the entering judges.  The only reason for this detail, he argues, is to make sure that the judges will not see her exposed body when they come in to instruct her and to supervise her immersion.  [The Vilna Gaon makes a similar claim.]  Rambam then merely completes the second half of the story, directing the judges to leave immediately in order to avoid seeing the woman as she exits the water just as they avoided seeing her as she enters.

We argued above that there might well have been another meaning to the directive to place the woman in water up to her neck, which is to ensure that she is immediately prior to immersion when the court is addressing her.  In fact, Arukh LaNer’s reading seems difficult, in that the Talmud states that the court stands outside after it directs the woman to be in water up to her neck.  If Arukh LaNer is correct, ought not it be the case that the men come in as soon as she is covered in water up to her neck?  Why do they wait outside while they inform the female convert of a selection of mitzvot?

R. Avraham Tzvi Klein (Hungary, 19th c.), in Responsa Be’eirot Avraham II:33, seems to grapple with these questions along with the seeming impropriety of having the judges present in the immersion room.  He offers a completely different reading of Rambam, where טובלת בפניהם refers only to seeing the woman go under from an adjacent room.  This accounts for the lack of a stage direction for them to enter and controls somewhat for the breach in privacy.  The instruction to the judges to leave is meant to tell them to leave even this adjacent room such that they do not even get a glimpse of the woman emerging naked from the mikveh.  This stretches the syntax of the Rambam and posits an additional room of which he never speaks.

Akiva Sternberg has suggested a historical context for the Rambam.  Rambam lived at a time when there was a widespread crisis surrounding the observance of immersion at the end of niddah.  The vast majority of women either refused to go to the mikveh at all, or merely washed in a regular bathhouse to mark the end of the niddah period.  Rambam was heavily involved in communal efforts to protest this situation and to change it, but to little avail.  Sternberg suggests that the Rambam’s motivation here is that he does not trust women to make sure that an immersion has happened properly.  In a culture of such widespread female disregard for immersion, Rambam may have felt the need to ensure that the beit din itself witnessed this key immersion on which a person’s new Jewish status depends.

However we understand Rambam, his ruling constitutes a significant addition to the base text of the Talmud and to what seems to have been the holding of many other medieval authorities.  When later authorities—such as the Shulhan Arukh—cite his language, are they consciously adopting his innovative standard, or are they merely using a conventional formula from the pen of a great codifier?

At least one scholar seems to have thought that the latter was the case.  In his commentary on the passage from Massekhet Gerim cited above, R. Ya’akov Naumberg (Germany, 18th c.), says the following:

נחלת יעקב על גרים א:ד
והא דקתני הכא האיש מטביל את האיש לאו דוקא איש אחד דהא קי"ל דלטבילת גרים בעינן ג'...וא"כ מוכח דלא סגי באיש א'. אלא הא דנקט הכא האיש מטביל את האיש לא אתי לאשמועינן אלא דאיש צריך לטבול בפני אנשים ואשה בפני נשים והת"ח עומדים מבחוץ בטבילת האשה וכ"כ בש"ע סי' רסח דאשה הנשים מושיבין אותה במים ובית דין עומדין מבחוץ.

Nahalat Ya’akov on Gerim 1:4
When it says here, “a man immerses a man”, it does not really mean a single man, for we hold that the immersion of converts requires three…If so, we clearly cannot suffice with one man.  Rather, when it says here, “a man immerses a man” it is only coming to teach that a man must immerse in front of men and a woman in front of women and the scholars stand outside while the woman immerses.  And so it is written in Shulhan Arukh [YD] 268 that, in the case of a woman, the women place her in water and the court stands outside.

Quite clearly, Nahalat Ya’akov reads the language at the end of the Shulhan Arukh as imprecise, reflecting a quotation of the Rambam that is not meant to have legal force.  However, most later authorities did not approach the Shulhan Arukh in this way and assume that its language is meant to endorse the Rambam’s insistence on having judges present in the room when the female convert immerses.  We have seen how R. Ovadiah Yosef, R. Moshe Feinstein and others all follow the Rambam exactingly and insist that the presence of the male beit din for the female convert’s immersion is essential.  That consensus in Rambam interpretation is strong.  Relying on alternative interpretations of the Shulhan Arukh or on attempts to minimize the Rambam’s sway over this discussion would likely only succeed when combined with nuanced positions outlined in the other parts of this essay.  As noted in Part III, several medieval authorities are far from certain that a beit din is even required for immersion at all, much less that there is any requirement to be in the room.

However, there are signs of openness to more flexible readings of the Rambam’s requirement for presence, even among the most strident supporters of the ongoing centrality of his position.  R. Ovadiah Yosef, immediately after insisting on hewing to the Rambam’s protocol, says the following:

שו"ת יביע אומר חלק א - יורה דעה סימן יט
ומיהו אפשר שאם היו הב"ד מבחוץ, והודיעוה מקצת מצות בשעת הטבילה, אפשר שיש להקל בדיעבד שלא תצטרך לחזור ולטבול בפני שלשה ממש. וצ"ע.

Responsa Yabia Omer I YD #19, R. Ovadiah Yosef, Israel, 20th c.
However, it is possible that if the beit din was outside and they informed the female convert of selected mitzvot at the time of the immersion, perhaps there is place to be lenient after the fact not to require her to immerse once again in the physical presence of three.  This requires further investigation.

R. Moshe Feinstein seems to go further, arguing that we ought to be broader in our understanding of the Rambam’s definition of presence:

שו"ת אגרות משה יורה דעה חלק ג סימן קיב
בדבר הגרות שהיתה בפני שלשה דיינים כשרים שנכנסו להמקוה כשהיתה עומדת עד צוארה במים ומחמת שהיה המקום צר ולא יכלו לעמוד בשורה אחת באופן שיראו כולם היטב הרכנת ראשה במים אלא עמדו זה אחורי זה ראה רק הראשון דעמד אצל המקוה ושנים האחרים לא יכלו לראות אבל שמעו קול הטבילה בהכנסת ראשה בהמים...

...אף לשיטת הרי"ף והרמב"ם...נמי לא מבעיא אם שמעו קול הכנסת ראשה דודאי הוא כראיה...אבל אף אם גם לא שמעו הרכנת הראש...נמי פשוט שמהני...אין להצריך דוקא ראיה ממש שאם איכא ידיעה ואומדנא גדולה כזו שודאי הכניסה כמו שאמרו לה שלא היה אפשר לה שלא להכניס ראשה ולהתחזק כגיורת כדכתבתי אין לחוש לכלום...

Iggerot Moshe III:112, R. Moshe Feinstein, United States, 20th c.
With respect to a conversion that happened in the presence of three valid judges who entered he mikveh while the convert was in the water up to her neck, but since the entrance was narrow, they could not stand in a line such that all of them could clearly see her head submerge.  Rather, they stood one behind the other and only the one in front, who stood next to the mikveh, could see, whereas the other two could not see but heard the sound of the immersion when her head went into the water.

…Even according to the position of Rif and Rambam…it is obvious that if they heard the sound of her head going into the water [that the conversion is valid] for that is certainly like seeing it…But even if they did not hear the sound of her head submerging…it is also obvious that the conversion is valid…We do not specifically require actual seeing [of the immersion]; if there is knowledge and an obvious assessment that she certainly submerged her head as they instructed her to—there was no way for her to be presumed a valid convert without submerging her head—one need to have any concerns at all…

This complex responsum argues that even the Rambam’s definition of presence does not require being in the room.  Knowing that something happened by a strong assessment of the available facts is equivalent to seeing it, and having other concrete evidence (such as hearing the immersion and/or relying on the testimony of a reliable individual witness) is on even stronger ground.  [R. Moshe goes on later in the responsum to appeal to position 5) that we discussed in part III above, which validates the notion of clear knowledge as being equivalent to physical presence.  He creatively suggests that perhaps even Rambam would have agreed with this basic treatment of facts by position 5): physical presence is not truly necessary for the beit din to be “present” at an immersion.  Interested readers should consult the rest of this text to see the argument there.]

We should note that R. Moshe offers language and legal reasoning that seem to support actively allowing the beit din to be outside the room, but in the actual case he addresses, the court was physically present (albeit with obstructed view of the immersion) and he is merely being called upon to validate a conversion process that already took place.  It is also surely the case that reading R. Moshe as a prescriptive authorization in keeping with Rambam to have the court out of the room would require quite a stretch of the latter’s actual language.  Rambam seems to go out of his way to place the beit din in the room.  If Rambam truly thought the beit din could just as easily be out of the room, why did he not simply retain the Talmud’s original language?  These questions may affect whether this responsum alone can be invoked to alter standard procedure going forward; it would seem more sound to have this source interplay with the many other factors we have examined.

Summary:  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 the Rambam and those who lived in Ashkenazi legal cultures shielded from his influence.  Rambam, 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 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 he would still consider a court that stood immediately outside to count as being in the presence of the immersion.

Part V: Gender—Why not have a female beit din?

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?

In Shoftim 4:4-5, we are told that Devorah judged the people and that they came to her for judgment, seemingly indicating that women are fit to serve as judges.  A number of rabbinic sources, in passing, seem to affirm this notion as a historical reality:  Rut Rabbah Parashah 1 reports a number of views as to who the “judges” mentioned at the beginning of the book of Rut were.  Among the candidates: Devorah and Yael.  Kohelet Rabbah Parashah 2 reports that among the many people in the king’s royal entourage were male and female judges.  By contrast, Sifrei Devarim #13 considers it absurd that women would ever be appointed as community leaders of the sort that Moshe tells the people to appoint as judges in Devarim 1:13.

These descriptive sources seem to portray an uneven historical record with respect to women and positions of judicial power.  And rabbinic sources are thin when it comes to clear statements about gender and judging.  Mishnah Niddah 6:4 states that כל הכשר לדון כשר להעיד/“Anyone who is fit to serve as a judge is fit to serve as a witness.  The contrapositive of this statement is that anyone unfit to be a witness is certainly unfit to be a judge.  Given that Mishnah Shevuot 4:1 (among many other sources) indicates that women are disqualified from serving as witnesses, women would thus seem to be invalid to serve as judges.  Indeed, Yerushalmi Yoma 6:1 states this plainly: הרי למדנו שאין האשה מעידה מעתה אין האשה דנה/“We have learned that women may not give testimony, therefore a woman may not serve as a judge.”

However, the Talmud Bavli opens up the possibility that the Mishnah’s rule is not ironclad.  On Niddah 49b-50a, the Talmud probes the Mishnah’s statement that יש שכשר להעיד שאינו כשר לדון/“There are some who are fit to serve as witnesses who are not fit to judge.”  R. Yohanan states that this is meant to include a person who is blind in one eye, who is fit to witness, but not fit to judge.  We then hear that R. Yohanan used to allow a blind man in his neighborhood to serve as a judge, in seeming contradiction to his explication of the Mishnah.  The sugya argues that Mishnah Niddah reflects the view of R. Meir and that R. Yohanan instead preferred the authority of a different Mishnah, one which suggests that blindness is not a limitation on being a judge.  Does this undermining of the second part of the Mishnah also extend to its first part, perhaps suggesting that there are some who are valid to judge who are nonetheless invalid as witnesses, such as women?  The Talmud does not explicitly explore this possibility.

[There is also a passage on Gittin 5b that is invoked by some to prove that women are invalid as judges, and it seems to have been read as such by both Rashi and Ran.  However, others read it as a statement regarding a woman being invalid to judge a case related to her own bill of divorce, such that it is not a concern of gender, but rather of impartiality.  In any event, while the interpretation of this source by medieval authorities is useful for determining their positions, the Talmudic source itself is not dispositive.]

In the middle ages, the question of gender and judging receives a bit more attention.  Tosafot, in a number of places, grapple with the contradiction between Devorah’s seeming legitimacy as a judge and the seeming exclusion of women that results from juxtaposing Mishnah Niddah and Shevuot.  Two main traditions emerge from the school of the Tosafot:

·         One approach holds that Mishnah Niddah is only speaking about men.  All men who are valid to judge are valid to witness.  But women, though they are valid to judge are invalid to witness.  According to this view, women are in fact valid as judges.  [This view can be seen most clearly in Tosafot Bava Kama 15a s.v. asher and Tosafot Gittin 88b s.v. v’lo.]
·         Another approach holds that women are indeed invalid.  Devorah was only valid as a judge either because she a) was appointed by God or b) simply taught laws without having coercive legal authority or c) was voluntarily accepted by the people because the divine presence dwelt upon her.  This view also cites the Yerushalmi as supporting evidence.  [Elements of this approach can be seen in the two passages above as well as in Tosafot Yevamot 45b s.v. mi, Tosafot Shevuot 29b s.v. shevuat and Tosafot Niddah 50a s.v. kol.]

In Part III, we saw R. Yehudah bR. Yom Tov and R. Simhah seemingly implicitly follow the first view when they validate a woman as a judge in the context of witnessing an immersion for conversion. Ritva on Kiddushin 35a cites both views detailed above as live positions.  So does Sefer Hahinukh #77, though he indicates a preference for the view that invalidates women.  Rosh Shevuot 4:2 rules like the second view above as well.

Rambam never weighs in on the specific question of gender and judging, but he makes a more general statement that women may not hold any significant public office, which would seem to extend to judging as well.  Most rishonim don't address this issue one way or the other.

Shulhan Arukh HM 7:4 sides with those who disqualify women from serving as judges, though Tiferet Ya’akov (R. Ya’akov Gesundheit, Warsaw, 19th c.) there is bothered by the lack of nuance in disqualifying women, since this was a subject of medieval debate.  Indeed, a number of modern authorities have refused to outright issue a ruling that depends entirely on the disqualification of women as judges.  R. Shlomo Lifshitz—chief rabbi of Warsaw in the early 19th century—in Responsa Hemdat Shlomo 29-30, discusses a case of a woman who was converted by a group of women.  In his lengthy analysis of this case, he casts doubt on whether it is so obvious that a convert really needs a beit din in a post facto situation, and even if so, whether it is so obvious that a group of women would not be sufficient for this purpose.  He refuses to cavalierly dismiss the potential validity of women as judges and minimally sees this as creating a situation of doubt.  [See also Responsa Minhat Yitzhak I:122:17.]

In more recent times, there was a lively debate between R. Hayyim Hirschenson (Israel/United States, 19th-20th c.) and R. Ben-Zion Meir Hai Uzziel (Israel, 20th c.) regarding gender and judging.  R. Hirschenson, in Responsa Malki Bakodesh II, argues that women are in fact valid as judges, contrary to the apparent holding of the Shulhan Arukh!  He states that the Talmud marginalizes Mishnah Niddah 6:4—as we explored above—and there is thus no reason to exclude women as judges.  Furthermore, he argues, even the Tosafot would only have thought that women are not expected to judge, but not that they are actually disqualified.  While some of these readings seem forced, R. Hirschenson is essentially reviving the ancient and medieval sources that seem to approve of gender-blind judging.  In response, R. Uzziel in Responsa Mishpetei Uzziel Bish’elot Haz’man #43, attacks his position and argues for the disqualification of women as judges.  He deflects R. Hirschenson’s readings of the Talmud and the Tosafot and insists that any medieval positions endorsing female judges are overridden by the Yerushalmi and the unequivocal position of the Shulhan Arukh.  Even R. Uzziel, however, argues that a community could theoretically make a takkanah to accept women as valid judges in their midst.  He, writing in the 1930s, thinks this is a bad idea both for family values and on account of his assessment of women as overly compassionate and easily hurt, which are traits that can get in the way of the fair—and sometimes necessarily harsh—administration of justice.  Needless to say, some of those considerations seem to have changed in the intervening years.  Though in the context of conversion, which must theoretically be valid for the entire Jewish people, it is not clear that the acceptance of women as judges in a local community would be sufficient to anchor a conversion process for people who will almost certainly move between communities.

There is a last, overarching factor to consider.  Even if, as a matter of precedent, one sides with the restrictive medieval positions, the Shulhan Arukh and R. Uzziel, this all presumes that the category of “women” is a biological category that can be mapped onto all those with an XX chromosome in any time or place.  This is far from certain.  The “woman” who is invalid to judge may be a member of a sociological category, those who are social adjuncts with insufficient authority to represent the community and to enforce its will and interpretation of God’s law.  This is perhaps most clear in the following list of people who are invalidated as witnesses:

משנה ראש השנה א:ח
אלו הן הפסולין המשחק בקוביא ומלוי ברבית ומפריחי יונים וסוחרי שביעית ועבדים זה הכלל כל עדות שאין האשה כשירה לה אף הן אינן כשירים לה:

Mishnah Rosh Hashanah 1:8
The following are invalid to testify: A dice-player, one who lends on interest, a pigeon racer, those who trade in Sabbatical produce and slaves.  This is the rule: Any testimony that a woman is unfit for, they too are unfit for.

The context here groups with women with other characters who lack social status, are lawbreakers or who otherwise demonstrate detachment from the core stakeholders of society.   Their exclusion in this context hardly seems grounded in biology, but rather in social status. While it is not a simple matter to jump from this context to a statement that ancient restrictions on female testimony no longer apply, it is far from safe to assert that such restrictions are clearly in force.  One can certainly imagine treating this question as one axis of doubt, such that when combined with another axis of doubt—the medieval and modern debates over whether even the Talmudic woman is invalid to judge, following Tiferet Ya’akov above—one would take a gender-blind approach to judging, even beginning from conventional rabbinical assumptions surrounding gender and power.  This is all the more relevant when we combine these questions with the ambiguities raised in the other parts of this essay.

Summary: Devorah is a famous example of a Biblical judge and other narrative rabbinic sources 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 whether women could serve as judges, and 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 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.

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.


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