Thinking About Religion
Volume 12 (2016)

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Queering Identities in Jewish Law

Zannah Kimbrel

“‘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.’”
-Margaret Moers Wenig, Male and Female G-d Created Them, 2009

Introduction

The 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.

Despite the careful enforcement and regulation of this binary, the reality of human bodies and experience is quite different. Many infants[1] are born with visibly intersex[2] 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, many individuals[3] with (to all appearances) “normal male” or “normal female” genitalia reject their birth-assigned gender categories.

So 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 (www.thetaskforce.org).

Jewish Law

Modern 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:

Although 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).

A 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.

Though 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[4] (and by extension, transgender and transsexual identified individuals) as immoral.

Richard 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)

Despite 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[5], which is reserved for men only[6]. 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.

In 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.

The “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.

A 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.

In 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.

Rabbi 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). 

Conclusion

The 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).

Though 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.

Works Cited

  • Balancing on the Mechitza: Transgender in Jewish Community. Edited by Noach Dzmura. Berkeley, California: North Atlantic Books, 2010.

  • The Babylonian Talmud. Yebamoth II. Vol. Seder Nashim. Translated Under the Editorship of Rabbi Dr I. Epstein. London: The Soncino Press, 1936.

  • Biblos.com in Coordination with Helps Ministries, "Interlinear Bible." Last modified 2013. Accessed November 19, 2013. http://biblehub.com/isv/.

  • Cohen, Alfred. Journal of Halacha and Contemporary Society, "Tumtum and Androgynous." Last modified 1999. Accessed October 12, 2013. http://www.daat.ac.il/daat/english/journal/cohen-1.htm.

  • Danby, Herbert. The Mishnah: Translated from the Hebrew with Introduction and Brief Explanatory Notes. New York: Oxford University Press, 1958.

  • Human Rights Campaign, "Transgender Visibility Guide." Last modified April 2013. Accessed November 3, 2013. http://www.hrc.org/resources/entry/transgender-visibility-guide.

  • Intersex Society of North America, "What is Intersex?." Last modified 2008. Accessed November 2, 2013. www.isna.org

  • ›Jacob, Walter. Marriage After a Sex-Change Operation: American Reform Responsa, New York, 1983, #137.Gender Issues in Jewish Law: Essays and Responsa. Edited by Walter Jacob and Moshe Zemer. New York: Berghahn Books, 2001.

  • Kukla, Elliot Rose. "Created by the Hand of Heaven": Sex, Love, and the Androgynos. The Passionate Torah: Sex and Judaism. Edited by Danya Ruttenberg. New York: New York University Press, 2009.

  • Kukla, Elliot Rose. "How I Met The Tumtum." TransTorah, 2006. http://www.transtorah.org/PDFs/How_I_Met_the_Tumtum.pdf (accessed November 10, 2013).

  • National Gay and Lesbian Task Force, "Injustice at Every Turn: A Report of the National Transgender Discrimination Survey." Last modified 2011. Accessed November 3, 2013. http://www.thetaskforce.org/downloads/reports/reports/ntds_summary.pdf.

  • Neusner, Jacob. The Tosefta. Vol. Second Division Moed. New York: Ktav Publishing House Inc., 1981.

  • Primary Care Protocol for Transgender Patient Care , Center of Excellence for Transgender Health, University of California, San Francisco, Department of Family and Community Medicine, April 2011. http://transhealth.ucsf.edu/trans?page=protocol-terminology

  • Rosenthal, Richard. Halakhah, Minhag and Gender.Gender Issues in Jewish Law: Essays and Responsa. Edited by Walter Jacob and Moshe Zemer. New York: Berghahn Books, 2001.

  • The Tosefta. Vol. First Division Zeraim. Edited by Jacob Neusner and Richard S. Sarason. Hoboken, New Jersey: Ktav Publishing House Inc., 1986.

  • "TransTorah." Accessed October 10, 2013. www.transtorah.org.

  • Wenig, Margaret Moers. "Male and Female God Created Them: Parashat Bereshit (Genesis 1:1-6:8)." Torah Queeries: Weekly Commentaries on the Hebrew Bible.: Pages 11-18. Last modified 2009. Accessed December 2013. http://elearning.huc.edu/jhvrc/upload/Wenig - Trans Chapter - Male & Female God created them.pdf.

  • Wenig, Margaret Moers. Hebrew Union College – Jewish Institute of Religion, "“’Male and Female God Created Them’?: The Intersex, Transgender and Transsexual in Jewish Tradition”." Last modified March 3, 2011. Accessed December 2013. http://elearning.huc.edu/jhvrc/upload/Wenig - Trans Talk - Male & Female God created them.pdf.



[1] 1 in 1500 to 1 in 2000 are born “so noticeably atypical in terms of genitalia that a specialist in sex differentiation is called in” (www.isna.org).

[2] This term is used to describe a variety of conditions in which a person is born with reproductive or sexual anatomy that doesn’t appear to fit the “typical definitions of female or male” (www.isna.org).

[3] It is estimated that .25% to 1% of the US population is transsexual, but the actual percentage of people who identify under the broader transgender spectrum is thought to be much higher (www.hrc.org).

[4] Understood as synonymous with “transvestite”, a psychiatric term, applied to male-bodied people who wear ‘female’ clothing. The term “crossdresser” will often be used as a self-referent (transhealth.ucsf.edu).

[5]  From Deuteronomy chapter 26

[6]  According to Numbers 26:54, “To a larger group give a larger inheritance, and to a smaller group a smaller one; each is to receive its inheritance according to the number of those listed.” (NIV)


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Posted 10/29/2012

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