Understanding the Androgynos

There is an increasing interest in the figure of the androgynos as we look towards broader trans and nonbinary inclusion. Some see the androgynos as a way of our sages reinforcing the binary and others see the androgynos as proof that Jewish society once had room for more than just the binary. This sheet is an attempt to look at the androgynos through the sages eyes.

The androgynos as their own gender:

If there is one thing the sages make clear, it is that the androgynos is not a man or a woman.

משנה ביכורים ד׳:א׳

(א) אַנְדְּרוֹגִינוֹס יֵשׁ בּוֹ דְּרָכִים שָׁוֶה לַאֲנָשִׁים, וְיֵשׁ בּוֹ דְּרָכִים שָׁוֶה לַנָּשִׁים, וְיֵשׁ בּוֹ דְּרָכִים שָׁוֶה לַאֲנָשִׁים וְנָשִׁים, וְיֵשׁ בּוֹ דְּרָכִים אֵינוֹ שָׁוֶה לֹא לַאֲנָשִׁים וְלֹא לַנָּשִׁים:

Mishnah Bikkurim 4:1

(1) The androgynos 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.

משנה ביכורים ד׳:ה׳

וְאִם אָמַר "הֲרֵינִי נָזִיר שֶׁזֶּה לֹא אִישׁ וְלֹא אִשָּׁה" אֵינוֹ נָזִיר. רַבִּי מֵאִיר אוֹמֵר: אַנְדְּרוֹגִינוֹס בְּרִיָּה בִּפְנֵי עַצְמָהּ הוּא וְלֹא יָכְלוּ חֲכָמִים לְהַכְרִיעַ עָלָיו אִם הוּא אִישׁ אוֹ אִשָּׁה. אֲבָל טֻמְטוּם אֵינוֹ כֵּן, פְּעָמִים שֶׁהוּא אִישׁ פְּעָמִים שֶׁהוּא אִשָּׁה:

Mishnah Bikkurim 4:5

If one says: “I will be a nazirite, if he is neither a man nor a woman,” then he becomes a nazirite. Rabbi Yose says: the androgynos 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.

The Obligations of the Androgynos

Despite the view of the androgynos as their own gender, the social expectations of the androgynos in some ways mirror that of men more than that of women. They are expected to dress like a man and fulfill all the commandments of the Torah like men (Mishnah Bikkurim 4:2). They can take a wife but cannot be taken as a wife. Why are these the expectations of the androgynos? It is not that the androgynos is treated entirely like men. Like women, the androgynos cannot eat most holy sacrifices and is disqualified from being a witness (Mishnah Bikkurim 4:3).

We can see that when there is no contradiction, the androgynos is to be treated as both a man and a woman: discharge, both red and white, causes impurity and the androgynos cannot be secluded with men or with women. This is stated explicitly in the Mishneh Torah.

משנה תורה, הלכות עבודה זרה וחוקות הגויים י״ב:ד׳

(ד) טֻמְטוּם וְאַנְדְּרוֹגִינוּס הֲרֵי הֵן סָפֵק, נוֹתְנִין עֲלֵיהֶן חֻמְרֵי הָאִישׁ וְחֻמְרֵי הָאִשָּׁה בְּכָל מָקוֹם וְחַיָּבִים בַּכּל. וְאִם עָבְרוּ אֵינָם לוֹקִין:

Mishneh Torah, Foreign Worship and Customs of the Nations 12:4

(4) A tumtum and androgynos, beings of doubtful sex, have the major responsibilities of both, men and women, of all commandments and are obliged to observe them all; nevertheless, if they violate any of them no stripes are inflicted.

However, while the androgynos is expected to fulfill all the major obligations of both men and women, they cannot fulfill them in the same way as a man or a woman because they are not a man or a woman. When an androgynos fulfills a community commandment, like blowing the shofar for Rosh Hashanah or reading the scroll of Esther, they can only fulfill that commandment for their own kind.

ראש השנה כ״ט א:י׳

טוּמְטוּם — אֵינוֹ מוֹצִיא לֹא אֶת מִינוֹ, וְלֹא אֶת שֶׁאֵינוֹ מִינוֹ. אַנְדְּרוֹגִינוֹס — מוֹצִיא אֶת מִינוֹ, אֲבָל לֹא אֶת שֶׁאֵינוֹ מִינוֹ. מִי שֶׁחֶצְיוֹ עֶבֶד וְחֶצְיוֹ בֶּן חוֹרִין — אֵינוֹ מוֹצִיא לֹא אֶת מִינוֹ, וְלֹא אֶת שֶׁאֵינוֹ מִינוֹ.

Rosh Hashanah 29a:10

A tumtum who sounds the shofarcannot discharge the obligation of one of his kind, i.e., a fellow tumtum, since men are bound by the obligation, whereas women are not, and it is possible that the sounder is female and the hearer is male, nor can he discharge the obligation of one who is not of his kind, an ordinary man or woman. A hermaphrodite can discharge the obligation of one of his kind, a fellow hermaphrodite, since if the sounder is treated as a female, the hearer is also considered a female, but he cannot discharge the obligation of one who is not of his kind. One who is half-slave and half-freeman cannot discharge the obligation of one of his kind, as the slave component of the sounder cannot discharge the obligation of the free component of the hearer, and he certainly cannot discharge the obligation of one who is not of his kind, i.e., a completely free individual.

תוספתא מגילה (ליברמן) ב׳:ז׳

(ז) חכל חייבין בקריאת מגלה, כהנים, לוים וישראל, גרים, ועבדים משוחררין, חללים, נתינים, וממזרים, סריס אדם, סריס חמה, פצוע דכא, וכרות שפכה, כולן חייבין, ומוציאין את הרבים ידי חובתן. טומטום, ואנדרוגינוס חייבין, ואין מוציאין את הרבים ידי חובתן. אנדרגינוס מוציא את מינו ואינו מוציא את שאינו מינו, טומטום אינו מוציא לא את מינו ולא את שאינו מינו, נשים ועבדים וקטנים פטורין, ואין מוציאין את הרבים ידי חובתן.

Tosefta Megillah (Lieberman) 2:7

All are obligated for the reading of the Scroll of Esther [on Purim]: Priests, Levites, converts, freed slaves, disqualified priests, mamzarim, a born saris, a saris by human action, – all of them are obligated. And all of them have the power to fulfill the obligation of the community [if they read the Scroll of Esther to the community as a whole]. A tumtum and an androgynos are obligated [to read the Scroll of Esther]. But they do not have the power to fulfill the obligation for the community as a whole. The androgynos has the power to fulfill the obligation for his own kind [another androgynos] and does not have the power for one who is not his own kind. A tumtum does not have the power to fulfill the obligation for others, whether they are of his own kind or not of his own kind. Women, slaves, and minors are exempt. Thus they do not have the power to fulfill the obligation of the community.

It is actually because the androgynos is treated as both a man and a woman at the same time that they cannot fulfill community obligations, which may also be the source of why in some ways an androgynos is treated more like a man. When obligations contradict, the androgynos takes on the obligations of a man. A woman is exempt from all time bound positive commandments, but a man is not (Kiddushin 34a:6). Since one cannot be exempt and obligated at the same time, the androgynos is obligated.

Why then does the androgynos wear men's clothers and why can the androgynos take a wife, but not be taken as a wife?

There are many potential reasons, but here are what I believe to be the most compelling three. Firstly, because of mar'it ayin and the obligation not to lead a fellow Jew astray. Because an androgynos is obligated to fulfill commandments women are not, an androgynos should dress as a man in order to not give a false impression on women's obligations. Secondly. because to be taken as a wife is to prevent a man from fulfilling his own obligations to be fruitful and multiple, a commandment so binding that a man must divorce his wife if she does not bear him children in 10 years time (Mishnah Yevamot 6:6). Lastly, and this relates back to the first, because the androgynos is obligated to fulfill Leviticus 18:22 and not lie with a man as one does a woman.

So what does this mean for us today?

When I look towards the future of trans and nonbinary inclusion within Judaism, I do not wish to see inclusion at the expense of halacha and our texts, but inclusion based on centuries of wisdom left before us. This sheet is my small contribution towards that future and I will continue to build on this to show that our sages before us saw a way for people who are not men or women to be meaningfully included within our communities.
Though my reverence for the work of those who came before me is deep, it is keeping within the tradition to challenge them too. While the sages of the past may have determined that an androgynos must wear men's clothing and cannot be taken as a wife, these should not necessarily be the obligations of the androgynos of the present. The androgynos of the present must serve the communities of the present and in turn the communities of the present must serve the androgynos of the present.

Berakhot 19b:9