Women in Scrubs – Room for Slack?


Tetzaveh-Zachor 5780


You shall make them linen breeches to cover their nakedness; they shall extend from the hips to the thighs. They shall be worn by Aharon and his sons when they enter the Tent of Meeting or when they approach the altar to serve in holiness, and they should not bear a sin and die.” (Shemos 28:42-43)

e these matters on his own. He must turn to medical professionals for advice, not merely because of the duty to abide by the law of the land (“Dina d’Malchusa Dina”) but because in all matters of danger to life, a person must be even more vigilant than he would in matters of regular Halacha (“Chamira Sakanta me’Isura”). Just as he would not think of issuing rulings in matters of Halacha, he certainly should not make his own decisions in medical matters.

Moreover, the rule of Chamira Sakanta me’Isura obligates a person to take all possible measures to avoid danger to himself or others. Therefore, he must strictly adhere to the guidelines of medical professionals in every situation.

An example of the conduct expected of a person to avoid contracting infection diseases can be found in the Gemara in Kesubos (77b). The Gemara discusses a highly infectious disease of the skin called “Ra’asan” and the extreme measures taken by various Amoraim to avoid being infected. R’ Yochanan would avoid any flies that had come into contact with a person suffering with Ra’asan (as they transmit the disease). R’ Zeira would not stand downwind of a bearer of Ra’asan, and R’ Elazar would not enter his room. R’ Ami and R’ Asi would not even eat the eggs from the street on which he lived!

Another factor is that matters that affect the general public are always viewed more stringently than those which only affect individuals. In the case of COVID-19, many of the guidelines issued by public health officials are intended to control the spread of the virus in the community and not just to protect individuals. Likewise, in Halacha, we sometimes consider things that relate to the public as matters of Pikuach Nefesh, even though they would not be treated as stringently for individuals. 

For example, hospitals have strict protocols that are designed to prevent danger to the public. A patient’s personal physician might recommend that his patient not undergo a specific treatment or diagnostic procedure because the chances that he will be endangered are low. Nevertheless, the hospital, as a public institution must enforce more stringent criteria.

Another example is vaccination against influenza. The health ministry, as a public agency, must take the stance that the vaccine is imperative (and perhaps even allocate funds to provide it to the entire population), else many will be endangered. However, a person’s personal physician may advise him that it isn’t necessary for him as his risk is low.

The same is true of COVID-19. The authorities have based their recommendations on the fact that this disease is affecting the public at large and have been accordingly stringent. The public, for their part, must abide by their recommendations. HaGaon Rav Asher Weiss Shlit”a notes that the same approach was taken by R’ Yisrael Salanter zt”l during the cholera plague in Europe of the end of the 19th century. He ruled that all members of his community, including the healthy ones, should eat and drink on Yom Kippur in order to prevent the spreading of the plague. Many disagreed with his conclusion, thinking it too lenient, but it certainly demonstrates the degree to which a danger to the general public is accorded significance.

This concept can be derived from several sources in Chazal[1]:

 

The Gemara in Nedarim (80b) cites a Tosefta (Bava Metzia 11) that discusses two neighboring towns, one of which has the rights to the waters of a nearby spring. The Beraisa discusses the degree to which the town with rights to the spring must allow the other town access to it, and R’ Yose says that the town’s need for laundering its residents’ clothes takes precedence over the other town, even at the expense of its residents’ lives.

The detailed description of the attire of the Kohanim in this Parsha relates to a common question of practical Halacha: May women wear scrub pants in hospital departments where it is mandatory or does that violate “Lo Yihye Kli Gever Al Isha” (the prohibition for a woman to wear male attire) (Devarim 22:5)?

The Mishna in Kiddushin (36a) rules that women may not perform the Avoda in the Beis haMikdash[1]. The Gemara derives this ruling from Pesukim, but Tosfos (ibid. 36b) ask why women could not simply be disqualified because they are “Mechusar Begadim” (lacking the Bigdei Kehuna[2]) which disqualifies the Avoda (Zevachim 17b)?

Tosfos offer two answers to this question: If women were eligible to serve in the Beis haMikdash, they would be permitted to don the Bigdei Kehuna (even though they are not explicitly commanded to wear them), and would not be Mechusar Begadim. For this reason, the Gemara needed to find a source that explicitly disqualifies them from performing the Avoda. Alternatively, since women were not commanded to wear Bigdei Kehuna, they would not be considered Mechusar Begadim if they were to perform the Avoda without them.

According to the first answer, if women are eligible to perform the Avoda they would be able to don Bigdei Kehuna which include a shirt, pants, hat and belt. This raises an obvious question: Are these not male garments that women may not wear due to the prohibition of Lo Yihye Kli Gever Al Isha?

Rav Yosef Engel zt”l discusses this question in Gilyonei haShas (Kiddushin ibid.). He cites the Gemara in Nedarim (49b) which relates that R’ Yehuda’s wife made a coat that she would share with him as they were exceedingly poor. The Maharsha (ad. loc.) asks how this was allowed, for if it was a woman’s coat, R’ Yehuda should not have been permitted to wear it and if it was a man’s coat, it should have been prohibited to his wife. He answers that it was neither a man’s nor a woman’s coat and could therefore be worn by either.

According to the Maharsha, any garment that is not gender-specific (i.e. intended to be worn only by one gender and not the other) may be worn by either men or women. Rav Yosef Engel therefore contended that the same would be true of Bigdei Kehuna. If women were eligible to perform the Avoda, the Bigdei Kehuna would not be considered gender-specific attire and could be worn by anybody.

Rav Yosef Engel’s proof from these words of the Maharsha is surprising. Although the Maharsha does propose the notion of unisex attire, he only applies it to a type of garment that is worn by both men and women (as in a coat). But the Bigdei Kehuna include garments which are essentially male garb (such as pants) – how can we be certain that the Maharsha would agree that even they can be rendered non-specific?

It appears that, according to Rav Yosef Engel, if an item of clothing is primarily worn by one of the genders but a certain type of this item is designed for both genders, it may be worn by men or women. Therefore, it would theoretically have been permitted for a woman to wear the pants of the Bigdei Kehuna even though pants in general are clearly male attire.

This ruling may be extremely relevant to the question of hospital scrubs for women.  In operating theatres and procedural units, the staff is required to wear scrubs – including pants[3], and without them, they may not even enter these areas of the hospital. In general, it is forbidden for women to wear pants for, as stated, they are considered male attire. However, according to Rav Yosef Engel, it may be permitted for a woman to wear hospital scrubs as they are clearly standardized attire and intended for either gender, unlike regular pants.

There is a similar discussion regarding hospital patient attire that includes pants for both men and women. Aside from the inherent Tznius concerns of women wearing pants, it may also be prohibited due to the fact that pants are male attire. The Avnei Yashfei[4] (6:118) argued that if the pants provided to hospital patients have different styles for men and women, women would be permitted to wear them[5]. Others disagreed given that pants are inherently male attire and a pattern or color that distinguishes certain pants as being for women does not render them female attire. (See Shu”t Minchas Yitzchak 2:108).

There are, however, other reasons to permit female patients, nurses, or doctors to wear pants. The Bach (Y.D. 182, based on Tosfos in Nazir 59a) famously rules that it is permitted for a woman to wear male attire if she is doing so to protect herself from the cold and not in order to look like a man. Moreover, even if she is attempting to look like a man, it is only prohibited if she makes use of male jewelry or accessories, and not if she merely dons clothes worn by men. (According to the Bach, there is a simple answer as to how R’ Yehuda’s wife was permitted to share a coat with him, as she was not attempting to appear like a man and also did not don male accessories.)

However, Rav Ovadia Yosef zt”l (Yabia Omer 6, Y.D. 14) argues that the Halacha does not follow the Bach, as the Maharsha (who sought a different explanation of the conduct of the wife of R’ Yehuda) and other Meforshim who follow his approach, clearly did not agree.

Nevertheless, the Taz (Y.D. 182:4) rules that one may be lenient if the intent of wearing clothes of the opposite gender is solely to protect from discomfort. The Shach (ibid. based on the Bach’s view) adds that if the rest of a person’s attire clearly comport with their actual gender, it is also permitted. Many later Acharonim cite the rulings of the Taz and Shach in this matter (see Yabia Omer ibid.) and although the matter remains in dispute and women should refrain from wearing pants in general, there is certainly room to be lenient in the case of hospital scrubs where there is a medical need[6].

An additional factor to consider is that some Poskim hold that nowadays a woman wearing pants is no longer a violation of Lo Yihye Kli Gever Al Isha as pants have become common apparel for women in the wider world. Though this is not the practice of women who observe the laws of Tznius (as pants display the contours of the body), the parameters of Lo Yihye Kli Gever Al Isha are not determined by Tznius concerns, but rather by the customary dress in contemporary society.

This ruling is based on the explanation of the Prisha (ibid. 5) of a ruling of the Rambam (cited by the Tur) that in places where it is customary for men to shave their armpits or pubic hair, one does not transgress Lo Yilbash[7] for doing so. The Prisha (in one explanation) explains that the Rambam is referring to a place where it is the custom of non-Jewish men to do so, thus establishing the community standard. Since it is not only women who shave these areas of the body in that community, it is no longer considered Lo Yilbash for men.

The Rashba (Shu”t 4:90) appears to disagree with the Prisha. He rules that if men (sinfully) perform acts that have previously only been practiced by women – even if they continue to do so for an extended period, these practices don’t become permitted to them, for these acts are inherently a female activity. Furthermore, if we were to permit them, people would benefit from acting sinfully – “Chotei Niskar” (as by performing these acts over an extended period they have rendered them a “male activity” and therefore permitted).

Perhaps the Rashba would still agree that there is no issue of Lo Yihye Kli Gever Al Isha for a woman to wear pants nowadays. His contention that one cannot change the status of activities that are inherently related to a single gender, is only true of activities such as shaving armpit or pubic hair, but items of clothing are not inherently related to one gender or another – that would seem to depend entirely on the time and place. (Yabia Omer ibid. makes a similar argument – see the Acharonim that he cites in this regard.)

As for the second contention of the Rashba (“Chotei Niskar”), this does not contradict the ruling of the Prisha who was clearly discussing a case where the custom changed due to the practice of non-Jews. Since a non-Jew has committed no sin (by shaving armpit or pubic hair), there would be no issue of Chotei Niskar. The Rashba, by contrast, was discussing a case where the custom had been changed by Jews acting sinfully.

However, it seems likely that the Rashba would dispute the entire premise of the Prisha that the parameters of the Halacha can be changed by the conduct of non-Jews. And where Jews have changed their conduct, there is a concern of Chotei Niskar.

In any event, it would seem that the ruling of the Prisha cannot be relied upon on its own but can possibly be added to our other reasons to be lenient in this issue.

Certainly, if a female doctor or nurse must wear scrub pants, she should choose a loose-fitting pair, and, if possible, wear a skirt on top (which would certainly be permitted even according to the Poskim who generally discourage women from wearing pants underneath a skirt). As mentioned in footnote 3, there are institutions that permit scrub skirts or dresses to be worn instead of pants, and, if all else is equal, it would be proper to choose to work in such an institution.

[1] Aside from the Korban Mincha brought by a Sotah or female Nazir which they wave (Tenufa).

[2] As women were not commanded to don Bigdei Kehuna

[3] There are a small number of hospitals that permit women to wear certain skirts in these areas.

[4] R’ Yisrael Pesach Feinhandler (1945-2011), Rav of Kehilas Avnei Yashfei in Yerushalayim

[5] This would not apply to hospital scrubs where there is no distinction between those used by the men and the women. Therefore, if not for the ruling of Rav Yosef Engel, they would certainly be prohibited.

[6] The fact that a dress or skirt would be equally effective in terms of infection control (and therefore, there is no true “medical need” for the pants) is irrelevant. Our argument is that she has been directed to wear pants for medical reasons and not out of choice. Therefore, if the Bach and Taz were lenient regarding wearing men’s clothes to protect from the cold, they would certainly rule leniently here too.

[7] The Posuk Lo Yihye Kli Gever al Isha (Devarim 22:5) that prohibits women from wearing men’s clothing concludes “v’Lo Yilbash Gever Simlas Isha” prohibiting men from wearing women’s clothing or grooming themselves in a female manner (e.g. shaving armpit or pubic hair).


Rabbi Yossi Sprung

Rabbi Yossi Sprung

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