Our Torah portion this week begins with the instruction: “Re’eh - See, I set before you today blessing and curse.” In Deuteronomy’s logic, the Israelites will reap blessings for following the laws and will be struck with curses if they don’t. Yet, despite what our parashah says elsewhere about neither adding to nor taking away from the commandments, Judaism has always had to negotiate the gap between law as it is written and life as it is lived. Indeed, as I argued from this very parashah many years ago, I doubt Judaism would still be a living religion if our ancestors had not done precisely that.

Halachah, Jewish law, therefore developed ways of acknowledging that a law exists without insisting that it must always be applied in the most straightforward possible way.

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I have been thinking about these different halachic approaches as a new statutory Code of Practice from the Equality and Human Rights Commission came into force this week in response to an earlier Supreme Court Ruling on sex and gender. The Code does not create new law, but it does give guidance that organisations are expected to take seriously.

The aspect of the Code, which has attracted the greatest amount of attention, is the provision of single-sex services, including toilets and changing facilities. The new guidance has caused considerable anxiety among trans people, many of whom are understandably asking what these new rules will mean in the most ordinary circumstances of daily life: where am I allowed to go to the toilet, will I be challenged, will I have to explain myself, will I suddenly be made to feel that my presence is a problem?

There has been plenty of public debate analysing the details of the Code. Instead of regurgitating those arguments, I want to focus on the Jewish question raised by its publication: what do we do when a law exists, but applying it straightforwardly risks creating a situation that is unworkable, humiliating or simply at odds with the reality in which people have been living?

There are three distinct Halachic approaches which I think are particularly helpful for us to consider as we reflect on this question.

The first is the distinction between le-chatchilah and b’diavad — between what should ideally happen in the first place and what we recognise as valid after the event.

The classic example focuses on the recitation of the Shema. The preferred practice is that we should hear ourselves saying the words. But the rabbis rule that if somebody recited the Shema without hearing themselves, they have nevertheless fulfilled the obligation. So, despite the fact that somebody has fallen short of the ideal, the law is still considered to have been followed.

Under circumstances of genuine difficulty, halachah can go even further. The principle sha’at ha-dechak ke-di’avad dami allows an urgent or pressing circumstance sometimes to be treated as though the action had already happened, permitting reliance on a position that would not normally be the preferred one. Again, the law has not disappeared. But the reality of human circumstance can permit a different interpretation.

The second approach is maybe even more remarkable. There are laws in our tradition that remain part of Torah and yet are either no longer applied or are interpreted in such a way that their application becomes extraordinarily difficult.

The best-known example is the case of the rebellious son, the ben sorer u’moreh, whose punishment is described in Deuteronomy. In the Talmud, the rabbis impose so many conditions upon the law that one opinion concludes that such a child “never was and never will be”. The law has not formally been repealed but the rabbis place themselves between the severity of the law and the vulnerable human being standing before them.

The Jewish legal tradition is interested in the authority of rules but also in what happens when those rules encounter actual human beings. Which brings me to the third principle: puk chazi mai amma devar — go out and see what the people do.

The phrase generally appears in the Talmud when the formal sources do not give a decisive answer. Instead of relying on theoretical arguments alone, the rabbis look at the actual practice of the community. What have Jews been doing? Perhaps lived practice has preserved a tradition that the was lost from scripture or it might demonstrate which side of an earlier debate has in fact been accepted.

This is not the same as saying that whatever people happen to do must automatically be right. But it gives lived experience a place within the process of determining what the law should mean.

And this, I think, matters enormously in the discussion we are now having about toilets and trans people.

For decades, trans people have been part of synagogues including ours: praying with us, studying with us, celebrating with us and mourning with us. And, from time to time, they have needed to use the toilet.

We have somehow managed.

We have managed without inspecting people’s birth certificates, without asking intrusive questions about their bodies, and without turning the use of a lavatory into a major communal issue.

Puk chazi mai amma devar. Go out and see what people actually do.

I do not believe that new guidance requires us suddenly to turn a practice that has worked in this synagogue for decades into a problem.

That is not the same as pretending that the law does not exist. But the EHRC Code makes clear that decisions around separate and single-sex services require attention to context, privacy and the circumstances in which they are being provided.

So maybe we can more liberally interpret the opening words of our Torah portion: “Re’eh - See, I set before you today blessing and curse.” Not simply, obey so that you shall reap blessing but rather be discerning to know the difference between blessing and curse.

Law in Jewish tradition cannot relieve us of that responsibility. We must ask what the application of a rule actually does. Does it protect people, or does it humiliate them? Does it solve a genuine problem, or does it create one? Does it enable people to participate safely in communal life, or does it make them anxious about something as simple as whether they can use the loo?

Our rabbis knew how to distinguish between a literal interpretation of a law and an existing reality. We should embrace their instincts. So, we will take the new guidance seriously. We will understand what it asks of us. But we will also take seriously what decades of lived experience in this community have taught us.

And I do not believe that we need to change a practice that has worked here without difficulty for decades simply because the legal conversation around us has changed.

The rabbis and our parashah reminds us that law always leaves us with a moral responsibility: to look carefully at what lies before us and to ask whether the path we choose brings blessing or curse.

May we have the wisdom to know the difference.

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