Identities in Jewish Law
“‘Zachar u’nikevah bara otam.’ Read not
‘G-d created every single human being as either
male or female’ but ‘G-d created some
humans male, some female, some who appear male but know themselves to be
female, others who appear female but know themselves to be male, and others
still who bear a mix of male and female characteristics.’”
Moers Wenig, Male and Female G-d Created
United States currently only legally recognizes two sexes- male and female.
When a baby is born doctors examine its genitals, and label it as one or the
other, thus determining the trajectory of the rest of the child’s life. If
labeled “male”, the child will be expected to grow up into a man, display
masculine traits, and be sexually attracted to women/females. If labeled
“female”, the opposite will be true. If all went according to plan, we would
have a society made up of two neatly defined and clearly divided genders, where
the biological sex determined at birth was an accurate predictor of the
individual’s gender, and where a person’s gender indicated their attraction to
(and only to) their opposite.
the careful enforcement and regulation of this binary, the reality of human
bodies and experience is quite different. Many infants are born with visibly
genitalia, and even more have subtle variations in sex anatomy, chromosomes, or
hormones that may not show up until later in life (www.isna.org). And, as if
this wasn’t enough of a wrench in the machine of socially constructed gender,
with (to all appearances) “normal male” or “normal female” genitalia reject their
birth-assigned gender categories.
important is this binary for modern society that it is common practice for
doctors to take matters into their own hands in the event of an ambiguously
sexed infant, often without the knowledge or consent of the child’s parents or
of the child itself. Additionally, the fact that only two genders are legally
recognized is further evidence of the refusal to acknowledge the existence of
gender variant individuals. Intersex and transgender individuals are offered
almost no protection under the law; in most states in the United States it is
still legal to fire someone simply for being transgender
secular law clearly does not make room for individuals outside of the gender
binary. Though contemporary Judaism exists and functions within wider society
and is therefore subject to influence of widespread modern notions of sex,
gender, and sexuality, there is much evidence in ancient Jewish legal texts
that suggests the accepted existence of individuals outside of the strictly
defined binary categories. Elliot Rose Kukla states:
Jewish Sages often tried to sort the world into binaries, they also
acknowledged that not all parts of G-d’s creation can be contained in orderly
boxes. Distinctions between Jews and non-jews; Shabbat and the days of the
week; purity and impurity are crucial to Jewish tradition. However, it was the
parts of the universe that defied binaries that most interested the Rabbis of
the Mishnah and the Talmud. Pages and pages of sacred texts are occupied with
the minute details of the moment between fruit and bud, wildness and
domestication, innocence and maturity, the twilight hour between day and night
(Kukla 2009, 197).
variety of separate gender categories in the Mishnah and Talmud are enumerated
to describe men and women who diverge from the norm, whether in appearance or
biology: In addition to zachar (man)
and nekevah (woman), there exist seris adam, a man castrated by other
humans, seris chammah, a man castrated
by nature, and aylonit, a woman who
exhibits masculine traits. Of particular interest for the purposes of this
discussion are the tumtum, defined in
the Talmud as one whose genitals are obscured or “covered” (Cohen), and the androgynos, generally understood as a
person with both male and female sex traits. These two genders as they appear
in Jewish texts are the most comparable to the modern description of intersex
bodies, and the most useful in a discussion of gender variance.
there are many instances in which the tumtum
and androgynos appear in Rabbinic
writings, these terms are not found in the Hebrew Bible. In fact, there are
very few biblical passages which relate specifically to issues of gender
variance. A variety of passages, however, are used to support later claims
which condemn those who do not fit within normative gender roles. The most
notable is Deuteronomy chapter 22, verse 5: “A woman must not wear what is
appropriate to a man, nor shall a man put on a woman’s garment, because anyone
who does this is detestable to the LORD your G-d” (ISV). Often, this verse is
cited to denounce crossdressers
(and by extension, transgender and transsexual identified individuals) as
Rosenthal delves into the significance of this verse in great detail in his
article “Halachah, Minhag, and Gender”. According to Rosenthal, the opinions of
both traditional and modern commentators on the verse have fallen into three
categories. Traditional commentators, including Rashi, believed that men and
women would exchange garments only in order to blend in with members of the
opposite sex and fornicate (Rosenthal, 108). Others, including Ibn Ezra,
translated k’li as “military
apparel”, meaning women were created to “perpetuate the seed” and not to fight.
An exchange in garments would lead to a confusion in the social roles, and then
to fornication (Rosenthal, 108). Modern commentators read the meaning of the
term “abomination” as a prohibition against homosexuality, which is “generally
associated” with “wearing the garment of the opposite sex” (Rosenthal, 109).
Others see the verse as an addition by the editors of Deuteronomy in an attempt
to emphasize the “purity” of the early Israelite religion. It has been proposed
that cross-dressing took place in cultic worship, such as within the worship of
Astarte, and it is possible that this verse 22:5 was an attempt to emphasize
the differences between the Israelite religion and other surrounding
practices (Rosenthal, 109). Most
contemporary Orthodox authorities understand the prohibition to apply only to
crossdressing that would lead to “illicit sexual relations” (Wenig 2011, 6)
the lack of appearance in the Hebrew Bible of individuals outside of the gender
binary, the tumtum and androgynos appear with surprising
frequency in the Mishnah, Tosefta, and Babylonian and Jerusalem Talmuds (Kukla
2009). The earliest of these, the Mishnah, contains a variety of passages in
which the tumtum and/or the androgynos are mentioned in order to be
as complete as possible when laying out all the details relating to specific
laws or commandments. Laws which seem at first glance to be utterly irrelevant
for understanding how gender variance was depicted in Jewish legal text
nonetheless include mentions of such individuals. Bikkurim, or “First-Fruits” in the First Division: Zeraim of the Mishnah describes the
proper ways in which the first produce of the ground may be gathered and
brought to the priests. The section describes when the first-fruits may be
brought, what sort of fruits may be brought, and who is allowed to bring them
(Danby, 93-94). “A guardian, an agent, a bondsman, a woman, one of doubtful
sex, or an androgynos” are all
allowed to bring them, but not allowed to make the avowal, which is reserved for men
Many passages in the Mishnah function in a similar way. The tumtum and androgynos are included not as deformed or morally wrong, but as
one option out of a variety of different groups for whom the correct execution
of the commandments is slightly nuanced.
addition to the various mentions within agricultural laws, there is an entire
section devoted to the unique nature of the androgynos.
Bikkurim chapter 4 describes the androgynos as “in some things like to
men and in some things like to women, and in some things like both to men and
to women, and in some things like neither to men nor to women” (Danby, 98). The
chapter goes on to elaborate on the ways in which the androgynos is like each of these, concluding with the idea that “an
androgynos is a creature by itself,
and the Sages could not decide about it whether it was man or woman” (Danby,
98). This section of the Mishnah, according to Danby, is adapted from the
Tosefta of Bikkurim, and does not
part of the Mishnah itself.
Bikkurim chapter 2:3
through 2:7 of the Tosefta also details the ways in which the androgynos is like men, women, both, and
neither (Neusner, 347-348). If the androgynos
emits a white or red discharge, the androgynos
is considered unclean like either men or women, respectively. This could
possibly be read as the presence of (male) ejaculate or menstrual blood
determining the sex of the individual in question: If they produce semen they
are considered male (and can be unclean in the ways other males can be), and if
they produce menstrual blood they are considered female (and can be unclean in
the ways other females can be). Since, however, it is quite possible that the androgynos produces neither, it would be
impossible to determine the sex of the individual in this way.
“ways in which it is like [both] men and women” are of particular interest. The
passage states that others are “liable for damages it sustains”, and that “the
one who kills it intentionally is put to death; unintentionally, is banished to
the cities of refuge” (Neusner, 348). The fact that this passage is included in
the legal text is significant. Here the status of the androgynos as a full human being is established. As with any other
full member of the community (male or female) who is injured bodily or
financially, the androgynos is
granted reparation under the law. The ambiguous status is not considered less
than that of a ‘normal’ male or a ‘normal’ female, nor is the presence of
atypical genetalia or reproductive anatomy considered grounds for treating the androgynos as a lesser being or as
outside of the community.
number of passages in the Babylonian Talmud also cite gender variant
individuals, again not questioning their right to exist, but rather working out
the details on how they should be included in full community life. Yebamoth in the seder Nashim, for example, contains multiple
passages which directly refer to both the tumtum
and the androgynos. Yebamoth 82b
attempts to work out the details of the marriage of the ‘hermaphrodite’ (androgynos), taking for granted the fact
that such a person could marry! Though the Rabbis have differing opinions on
what exactly was meant in the Mishnah verse that stated “The hermaphrodite may
marry”, there is no doubt that a person with such a status was allowed to marry
(Epstein, 558). What seems to be of primary concern is the potentiality of a
(male) homosexual marriage or relationship, which they viewed as not
permissible. Because they could not be sure if the androgynos was clearly a man or a woman, they could not say for
sure if a particular coupling was homosexual; however, because they could never
be sure that the androgynos was not a
male, certain precautions had to be taken.
Jewish legal texts there are many mentions of the tumtum and androgynos,
describing how different gender-based commandments should apply to these
individuals in certain contexts. The rabbis of the Mishnah and Talmud do not
agree on the status of the tumtum or androgynos, and therefore also do not
always agree on the treatment of such individuals within these situations. The
lack of a unified rabbinic opinion is quite common within the Talmud, but here
the consequences are different, and perhaps more detrimental for those with
gender variant bodies.
Alfred Cohen’s article on the halachic issues that arise with regard to the
surgical treatment of intersex individuals makes it clear that drastically
different actions are taken based on which opinion is followed. If, for
example, the androgynos is assumed to
be certainly male, as some rabbis proposed, then it would not be permitted
halachically for the child to be surgically “turned into a girl”, as is the
common practice for infants born intersex (Cohen). This opinion would also
require the individual in question to marry as a man. Other rabbis considered
the sex status of the androgynos to
be in doubt, or as possibly male and possibly female. Turning this individual
“into a girl” would take away the “ability and privilege” of performing the
mitzvot required of men (Cohen).
exceptional bodies that richly populate the Mishnah, as well as the Hellenistic
ancient world, have almost vanished in modernity. This is not because sex is
any less variable in the twenty-first-century United States than it was in
first-century Palestine, but because cultural authority figures such as
doctors, scientists, and scholars have found ways to make individuals who do
not conform to binary sex assignment disappear (Kukla, 196).
it is clear that social constraints in many ways limit the interpretation of
Jewish legal texts, the existence of multiple gender categories within these
texts is monumental. Modern audiences can choose to gloss over or skip such
passages altogether, but their presence creates a space for marginalized
identities within the law and within the Jewish tradition as a whole. It is up
to modern interpreters of the law to cultivate and expand this space.
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