Bekhorot 42b (מב:) — the Talmud in English

And Rabbi Shimon

ben Yehuda came to say: A tumtum is a distinct creature and is not consecrated.

And we reject this:

No; everyone agrees that, with regard to a tumtum, there is no doubt that it is a distinct creature,

for it is certainly not a distinct entity in its own right, but

with regard to a male and a female

alone

is there a doubt.

Their dispute concerns another matter, as explained:

If he

urinates from the place of the male organ, everyone agrees that he is male,

and he is consecrated.

They disagree with regard to one who urinates from the place of the female organ.

The Master,

the Sages, holds: This tumtum is doubtfully male, for

we are concerned that his male organ may have been transformed,

that his organ folded inward and reached the place of

the female organ,

and therefore he urinates from there.

And the Master,

Rabbi Shimon, holds:

We are not concerned

that it may have been transformed; he is certainly female, since he urinates from the place of the female organ.

And Rabbi Shimon ben Yehuda holds

in accordance with that which Rabbi Ila’i ruled: In the case of a tumtum among animals that urinates from the place of the female organ, it is non-sacred,

and it is not consecrated as a firstborn.

Rabbi Yoḥanan challenged

this ruling of Rabbi Ila’i.

Who

is the one

who paid no attention either to the first tanna or to Rabbi Yishmael,

who said in the Mishna that a tumtum may not be slaughtered either in the Temple or in the country, because its status is uncertain? For even Rabbi Yishmael disagrees with the first tanna only with regard to an androgynos; but with regard to a tumtum, he agrees that its status is uncertain. And you are compelled to say that the case concerns one who urinates from the place of the female organ, whereas Rabbi Ila’i said that it is certainly female and has no sanctity at all.

And we raise an objection:

Why did Rabbi Yoḥanan not also say

“Who paid no attention to the later Sages”

of the Mishna? They too hold that the status of a tumtum is uncertain.

For Rav Ḥisda said: The dispute

of the Mishna

concerns an androgynos. But with regard to a tumtum, everyone agrees that its status is uncertain.

And if so, Rabbi Ila’i’s ruling accords with none of them.

And we answer:

Rabbi Yoḥanan does not accept the opinion of Rav Ḥisda.

Rather, he holds that according to the later Sages a tumtum is also a distinct creature.

And we challenge this:

If he does not accept his opinion,

why was he astonished by Rabbi Ila’i?

Let him say that Rabbi Ila’i ruled in accordance with the later Sages.

And in truth, every tumtum is non-sacred, even one who urinates from the place of the male organ.

And we answer:

This is also what Rabbi Yoḥanan was saying:

Rabbi Yoḥanan said:

Who abandons two

tannaim—the first tanna and Rabbi Yishmael—

and acts in accordance with one,

the later Sages?!

And we inquire:

And in accordance with whose view did Rabbi Ila’i hold?

And we answer:

In accordance with that which Reish Lakish said: They said that a tumtum

is a

matter of uncertainty only with regard to a human being, since his male and female organs are in one place,

and it is impossible to examine him by observing where he urinates.

But in the case of an animal,

which can be examined, we observe: If it

urinates from the place of the male organ, it is male.

And if it

urinates from the place of the female organ, it is female.

And all the tannaim of the Mishna hold this way. The Mishna is discussing a tumtum that urinates from the place of the male organ, so that it is certainly male and is consecrated as a firstborn. Nevertheless, according to the first tanna, it may not be slaughtered in the Temple, because it is unfit for sacrifice, as it appears to have a blemish since it lacks a visible male organ. Rabbi Yishmael and the later Sages disagreed with the first tanna only with regard to an androgynos, but with regard to a tumtum they agree with him. And one who urinates from the place of the female organ is certainly female according to everyone, and Rabbi Ila’i issued his ruling in accordance with the view of everyone.

Rav Oshaya raised an objection

to this statement of Reish Lakish, that one who urinates from the place of the female organ is female:

Let us be concerned that perhaps

he is male and

his male organ was transformed into his female organ,

so that, because the organ folded inward, he urinates from the place of the female organ.

Abaye said to him: In accordance with whose view

should we be concerned—is it

that of Rabbi Meir, who is concerned for the minority!?

For it is an uncommon occurrence that a male organ should be transformed into a female organ. Are we concerned for the view of an individual?

Abaye bar Avin and Rav Ḥananya bar Avin both said: Even if you say that it is according to the Sages,

who are not concerned for the minority, we can nevertheless challenge: “Perhaps his male organ was transformed.”

And the reason is:

Since it changed

so as to become a tumtum,

it changed

as well,

so that his male organ was transformed into his female organ. That is, it is common for a person who has deviated from the ordinary condition to undergo additional changes.

And we answer:

Some say: It changed; and some say: It did not change.

The Sages and Rabbi Shimon ben Yehuda in the name of Rabbi Shimon disagreed about this in the beraita: When one urinates from the place of the female organ, is he female, or is his status uncertain because we are concerned that he changed? Rabbi Ila’i issued his ruling according to Rabbi Shimon.

Let us say

that this matter of

“it changed” and “it did not change”

is a dispute among

tannaim.

As it was taught in a beraita: A tumtum who betrothed

a woman,

his betrothal is a valid betrothal,

and his wife requires a bill of divorce as a stringency, lest he be male.

And if he

was betrothed, his betrothal is a valid betrothal.

And the man who betrothed him is forbidden to the relatives of the tumtum, such as his mother and sister, since perhaps the tumtum is female, in which case they are his mother-in-law and his wife’s sister.

And he performs ḥalitza

with his brother’s widow as a stringency, when there is no other brother there, because perhaps he is male and his brother’s widow is forbidden to marry anyone else until he performs ḥalitza [but if there is another brother, he performs ḥalitza, because perhaps the tumtum is female and his ḥalitza is of no effect].

And ḥalitza is performed with his wife

as a stringency, lest he be male, in which case his wife is forbidden to marry anyone else without ḥalitza.

And his wife may be taken in levirate marriage

that is, it is also permitted to perform levirate marriage with his wife, for whichever way one looks at it, the levirate husband is permitted to this woman: If his brother the tumtum was male, she is permitted to him through levirate marriage; and if he was female, it follows that his betrothal was not a valid betrothal, and “his wife” is permitted as an unmarried woman [but the tumtum himself cannot perform levirate marriage, since he cannot father children and establish a name for his brother].

And another beraita was taught: The wife of a tumtum performs ḥalitza but may not enter levirate marriage.

What, is it not that everyone holds in accordance with Rabbi Akiva,

who

says that a naturally sterile man,

one who was sterile from his mother’s womb,

does not perform ḥalitza and does not enter levirate marriage?

And likewise, his wife neither performs ḥalitza nor enters levirate marriage, because the sterile man never had a period in which he was fit to father children, and the verse “that his name not be erased from Israel” does not apply to him, since his name is already erased and remains so.

And this is the point over which they disagree: The one who says that he performs ḥalitza, that ḥalitza is performed with his wife, and that his wife may be taken in levirate marriage

holds:

We do not say, since it changed

to become a tumtum,

it changed

as well so that there is uncertainty whether he is a naturally sterile man. Perhaps, if the tumtum were torn open, it would become clear that he was indeed male and that his wife had been validly betrothed to him; but he was a naturally sterile man, whose wife is exempt from levirate marriage.

And the one who says that she performs ḥalitza but may not enter levirate marriage

holds:

We say: Since it changed

to become a tumtum, it also changed so that there is uncertainty whether he is a naturally sterile man. And since his wife is exempt from levirate marriage, it is forbidden to perform levirate marriage with her, as she is the wife of a brother in a case where there is no mitzva [nevertheless, she performs ḥalitza, because there is concern that he was not sterile and his wife is forbidden without ḥalitza].

And we reject this:

No! Everyone says: Since it changed, it changed.

And we are uncertain whether he is a naturally sterile man. Thus, the beraitot are not difficult for one another.

This

statement, that she may enter levirate marriage, is the opinion of

Rabbi Eliezer,

who says that the wife of a naturally sterile man may enter levirate marriage [since he can be cured]. Therefore, the wife of the tumtum may enter levirate marriage whichever way one looks at it: If he is male, his wife is permitted through levirate marriage even if he was sterile; and if he was female, his “wife” is merely an unmarried woman.

And this

statement, that she may not enter levirate marriage, is the opinion of

Rabbi Akiva,

who holds that the wife of a naturally sterile man may not enter levirate marriage.

And we inquire:

And who

is this

tanna, according to Rabbi Akiva,

who holds that the wife of a tumtum performs ḥalitza but may not enter levirate marriage?

If you say it is Rabbi Yehuda, this

Rabbi Yehuda

certainly considers him a sterile man

—the tumtum!?

As we learned in the Mishna: Rabbi Yehuda says: A tumtum who was torn open and was found to be male may not perform ḥalitza, because he is certainly like a sterile man

and his ḥalitza is of no effect, since he cannot “establish a name for his brother” and is not included in the laws of levirate marriage. The same applies to his wife: she is exempt even from ḥalitza, in accordance with Rabbi Akiva’s view. Therefore, this statement that she performs ḥalitza but may not enter levirate marriage cannot be attributed to him.

And we answer:

Rather, it is Rabbi Yosei bar Rabbi Yehuda.

As it was taught in a beraita: Rabbi Yosei bar Rabbi Yehuda says: A tumtum does not perform ḥalitza

when there are other brothers who can perform ḥalitza,

lest he be torn open and found to be a naturally sterile man

and his ḥalitza is not valid ḥalitza. Thus, Rabbi Yosei bar Rabbi Yehuda holds in accordance with Rabbi Akiva; yet, on the other hand, he holds that the tumtum is not certainly sterile, but only doubtfully so. If there were no other brothers, he would be required to perform ḥalitza due to the uncertainty, lest he not be sterile.

Therefore, the wife of a tumtum requires ḥalitza due to the uncertainty that he may be male and not sterile. But she may not enter levirate marriage, lest he be sterile.

And we challenge:

Is it obvious to

Rabbi Yosei bar Rabbi Yehuda

that he will be found to be male?

Is he uncertain only that

he may be found to be a naturally sterile man after he is torn open?

Is it the case that every

tumtum

who is torn open is found to be male, and none is found to be female?

There is also reason for uncertainty that he may be found to be female, in which case he is unfit for ḥalitza.

And we answer: Indeed, this is also so:

He stated both possibilities! He may be torn open and found to be female. Alternatively,

he may be

male as well,

but there is uncertainty

that he may be found to be a naturally sterile man.

And we inquire:

What difference is there between them,

between Rabbi Yehuda and Rabbi Yosei bar Rabbi Yehuda with regard to the ḥalitza of a tumtum? Both of them said that he does not perform ḥalitza. What practical difference does it make whether this is because the tumtum is certainly sterile or because he is only doubtfully sterile?