- This commentary will analyze Tosefta Bikkurim 2:2,3,4 and 6, and give the modern scientific perspective on intersex physiology discussed in the text.
- The Tosefta is an ancient Jewish text from the late second century. It is a compilation of laws and discussions that accompany the Mishnah, which is the recording of the Jewish oral torah also known as the Hebrew bible.
- The chapter of Bikkurim contains discussion laws regarding agriculture, such as growing crops and raising animals.
- The intersex person in this passage is described as the noun androgynous, which I will use to describe them as that is the term used in the text.
- The literature cited uses the term Disorder of Sexual Development (DSD). I think that this term over pathologizes normal human variation, so I will use the same acronym, but it will mean Differences in Sexual Development.
- The text uses the pronoun “he” to describe an androgynous. I will use the pronoun “they” as I think it makes the most sense when describing a person with ambiguous characteristics.
(ב) אנדרוגינוס יש בו דרכים שוה לאנשים ויש בו דרכים שוה לנשים ויש בו דרכים שוה לאנשים ולנשים ויש בו שאינו שוה לא לאנשים ולא לנשים.
(2) An androgynous (i.e., a hermaphrodite) is in some ways like a man and in some ways like a woman. And in some ways he*Note: The Tosefta uses the masculine gender as a default in reference to an androgynous. is like both a man and a woman, and in some ways he is like neither a man nor a woman.
(ג) דרכים ששוה [בהן] לאנשים מטמא בלובן כאנשים נושא אבל לא נושא כאנשים ואין מתייחד עם הנשים כאנשים ואינו נתזן עם הבנות כאנשים [ואין מטמא למתים כאנשים] ועובר על בל תקיף [ועובר על בל] תשחית כאנשים וחייב בכל המצות האמורות בתורה כאנשים.
(3) The ways in which he is like men: He imparts impurity with white discharge like men. He marries but is not married (נישא not נושא), like men. And he may not seclude himself with women, like men. And he is not provided sustenance (ניזון not נתזן) along with [a person's] daughters, like men. And he does not [permit himself to] become impure by the dead, like men (i.e., male priests). He is subject to transgressing the prohibition against "rounding off [the corners of the head]" (Lev. 19:27) and [if he is a priest] he is subject to transgressing the prohibition against "defiling oneself with the dead" (Lev. 21:1), like men, and he is liable for performing all the commandments in the Torah, like men.
This tosefta is concerned with this type of discharge because of the idea of Tum’ah (טומ'א) or ritual impurity, that can prohibit a person from doing certain tasks.
From this verse it has been determined that an androgynous is like men, in the way that they produce semen. At the time sex was determined by gentital anatomy, secondary sex characteristics, and what type of fluid the body produced. Today we have many more tools to diagnose DSD. Hormone levels can be assessed via a blood or tissue sample, or someone can undergo genetic testing to determine which intersex condition they have.
It is key to note that this manner of diagnosis relies only on visual assessment. A lot of intersex people could have physiologies that remain internal which would not have been discernable with this type of assessment. For example, a relatively common intersex physiology is undescended testes with a penis or enlarged clitoris. With the framework from the text, a person with that anatomy would only be considered “like man” if they produced semen.
(ד) דרכים ששוה לנשים מטמא באודם כנשים ואין מתייחד עם האנשים כנשים ואין זוקק ליבום כנשים ואין חולק עם הבנים כנשים ואין [חולק] בקדשי קדשים כנשים ופסול לכל עדות שבתורה כנשים ואם נבעל בעבירה פסול [מן הכהונה] כנשים.
(4)The ways in which he is like women: He imparts impurity with red discharge, like women. And he may not be secluded with men, like women. And he does not create a levirate bond with his deceased brother's wife, like women. And he does not share in a portion of the most holy offerings, like women. And he is disqualified in all testimony that is [delineated] in the Torah, like women. And if he engaged in forbidden sexual relations, he is disqualified from [the priestly gifts bestowed upon members of] the priesthood, like women.
The exact cause of developing an ovotestis is unknown due to its rarity. However, scientists are starting to have a few different ideas. Most people with ovotestis have XX chromosomes, which lead to “female” development when the individual is endosex. In some cases the SRY gene of the Y chromosome appears on the X chromosome or other chromosome (NORD 2016). The SRY gene is a transcription factor, which helps the correct area of DNA be expressed at the correct amount, and it develops the male gonads, testes, and prevents the development female gonads, ovaries. The SRY gene is important because it is responsible for the development and hormone cascade that causes male development.
A case study from 2020 in Brazil of a 17 year old, describes a physiology possibly similar to that described in the Tosefta with this individual having an enlarged clitoris, a singular opening for the vagina and urethra, and had been menstruating for two years.
Others with a similar physiology are described in a case study of three Italian infants in 2019. All three were described as having an ovotesticular DSD, with each infant having a different physiology, including one with testes, penile tissue and a uterus. Although rare, these modern case studies illuminate the type of physiology the androgynous in the Tosefta could have had.
(ו) דרכים [שלא] שוה [בהן לא] לאנשים [ולא לנשים] אין חייבין על [חטאתו] ואין שורפין על טומאתו ואין נערך לא כאנשים [ולא כנשים] אין נמכר לעבד עברי לא כאנשים [ולא כנשים] אם אמר הריני נזיר שאין זה איש ואשה הרי זה נזיר ר' יוסי אומר אנדרוגינוס בריה [לעצמו ולא יכלו חכמים להכריע עליו] אם איש הוא [אם] אשה [הוא] אבל טומטום אינו כן אלא או ספק איש או [ספק] אשה.
(6)Ways in which he is neither like a man nor a woman: He is not liable on his impure [discharge], and he does not burn his impure [Terumah], and he does not have a prescribed value, which is neither like men nor like women, and he is not sold as a Hebrew slave, which is neither like men nor like women. If someone said, "Behold, I will become a nazirite if this one is neither a man nor a woman," behold, he has become a nazirite. Rabbi Yosei says, an androgynous is a unique creation unto himself and the Sages were unable to render a decision about him, whether he is a man or woman, but this is not so with a tumtum, as to whom there is only a doubt as to whether he is a man or a woman.
It is important to read the Tosefta because it shows documentation of intersex patients in ancient history. The diagnosis of androgynous, of having an ovotestis, is entirely anatomical and physiological in the text. It relies on being capable of being like man by producing semen, and like woman by menstruating.
Today, there are numerous other methods of diagnosing for intersex people. Some of them are more common, like prenatal screening. While a baby is still inside the uterus the blood of the parent contains trace amounts of cells from the baby which can be sexed.
Two main ways intersex people can be diagnosed are hormone testing, and karyotyping. Hormone testing will compare the hormones, a substance in human blood or tissue that regulates function or communicates with other body parts, with the hormones considered typical for their sex. Karyotyping is imaging of chromosomes, the structures made up of DNA that form during cell division, and carry the information to form new cells. Females will have two long X chromosomes, and males will have one long X chromosome and one short Y chromosome. An intersex person may lack a sex chromosome, have an extra, or have parts of one mixed with parts of the other.
Modern science has given us the tools to more accurately diagnose intersex physiologies than in the time of the Tosefta. Still intersex people face tremendous societal stigma. Many have their genitals surgically altered as infants when they cannot consent. The Tosefta illuminates the social and medical code ascribed to intersex people at the time it was written. Let it serve as documentation of history of how social rules and medicine are intertwined.
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Carpenter, Morgan. “INCLUSION GUIDE TO RESPECTING PEOPLE WITH INTERSEX VARIATIONS.” Intersex Human Rights Australia, https://ihra.org.au/wp-content/uploads/key/Intersex-inclusion.pdf. Accessed 12 December 2024.
“Differences in sex development.” NHS, https://www.nhs.uk/conditions/differences-in-sex-development/. Accessed 12 December 2024.
“Intersex people | OHCHR.” ohchr, https://www.ohchr.org/en/sexual-orientation-and-gender-identity/intersex-people. Accessed 12 December 2024.
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Tosefta, Bikkurim, Chapter 2, Halakha 2,3, and 6