Gender Non-Conformity in Jewish Thought

(1) The hermaphrodite is in some ways like men, and in other ways like women. In other ways he is like men and women, and in others he is like neither men nor women.

(2) In what ways is he like men?He causes impurity with white discharge, like men; He dresses like men; He can take a wife but not be taken as a wife, like men. [When he is born] his mother counts the blood of purification, like men; He may not be secluded with women, like men. He is not maintained with the daughters, like men; He transgresses the law of: “You shall not round” (Leviticus 19:2 and “You shall not defile for the dead,” (Leviticus 21:1) like men; And he must perform all the commandments of the Torah, like men.

(3) And in what ways is he like women?He causes impurity with red discharge, like women; And he must not be secluded with men, like women; And he doesn’t make his brother’s wife liable for yibbum (levirate marriage); And he does not share [in the inheritance] with the sons, like women; And he cannot eat most holy sacrifices, like women. At his birth his mother counts the blood of her impurity like [they do when they give birth to a] girl; And he is disqualified from being a witness, like women. If he had illicit intercourse, he is disqualified from eating terumah, like women.

(12) One who is androgynous may not seclude with women. But if one does seclude, they are not lashed because their status is doubtful. A man is permitted to seclude with one who is androgynous or a tumtum

(5) Rabbi Yose (Meir?) says: the hermaphrodite is a unique creature, and the sages could not decide about him. But this is not so with a tumtum, for sometimes he is a man and sometimes he is a woman.

טוּמְטוּם m. (redupl. of טָמַם) a person whose genitals are hidden, or undevelopped; one whose sex is unknown. B. Bath. 126ᵇ ט׳ שנקרע וכ׳ a tumtum who was operated upon and was found to be a male. Bicc. IV, 5 (Talm. ed.); a. e.—[Midr. Till. to Ps. I; Yalk. Prov. 953 ט׳ הוא העולם, v. אַבְטוֹמְטוֹס.]—Pl. טוּמְטוּמִין. Yeb. 64ᵃ bot. (not טומטמין).

(5) A woman may not clothe herself in men's clothing, e.g. put on her head a mitre or helment, or wear armor, and so on Rama: from that which men wear in accordance with the local custom (Tur) or shave her head like a man. A man may not clothe himself in the clothes of a women, e.g. wear colored clothing or golden ornaments in a place where only women wear those things. Rama: Even wearing just one of the garments is forbidden, even if it is apparent by his other garments that this is a man or a woman (Beis Yosef). A tumtum and an androgynos are forbidden to dress like women.

(12) One who is androgynous may not seclude with women. But if one does seclude, they are not lashed because their status is doubtful. A man is permitted to seclude with one who is androgynous or a tumtum

However, as the status of a tumtum, who lacks external sexual organs, is a halakhic uncertainty, is a verse necessary to exclude an uncertainty? Abaye said: It is referring to a case when the testicles of a tumtum are on the outside, although his penis is not visible. The verse teaches that this tumtum is not obligated in the mitzva of appearance, despite the fact that he is certainly male.

Rabbi Ami said: Abraham and Sarah were originally tumtumin, people whose sexual organs are concealed and not functional, as it is stated: “Look to the rock from where you were hewn, and to the hole of the pit from where you were dug” (Isaiah 51:1), and it is written in the next verse: “Look to Abraham your father and to Sarah who bore you” (Isaiah 51:2), which indicates that sexual organs were fashioned for them, signified by the words hewn and dug, over the course of time. Rav Naḥman said that Rabba bar Avuh said: Our mother Sarah was initially a sexually underdeveloped woman [aylonit], as it is stated: “And Sarah was barren; she had no child” (Genesis 11:30). The superfluous words: “She had no child,” indicate that she did not have even a place, i.e., a womb, for a child.

And these are the signs of a saris: He doesn't have a beard. His hair is weak. His flesh is smooth/hairless. His urine doesn't make foam. And when he urinates, it doesn't form an arch. And his semen is thin. And is urine doesn't ferment. And he washes in the rainy season without his flesh producing steam. And his voice is week and he can't be identified as male or female.

§ It is taught in the mishna that a sexually underdeveloped man does not perform ḥalitza or enter into levirate marriage with his yevama, and similarly, a sexually underdeveloped woman does not perform ḥalitza or enter into levirate marriage with her yavam. The Gemara comments that the tanna teaches the case of a sexually underdeveloped man similarly to that of a sexually underdeveloped woman, from which it can be inferred: Just as in the case of a sexually underdeveloped woman, her disability is by the hand of Heaven, so too, in the case of a sexually underdeveloped man, his disability must be by the hand of Heaven. And this unattributed view in the mishna is in accordance with the opinion of Rabbi Akiva, who said: With regard to one whose incapacity was brought about by the hands of man, yes, he is considered like any other man and performs ḥalitza, whereas one who suffers his condition by the hand of Heaven does not do so.