Bekhorot 42b — the Talmud in English

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son of Yehuda came to say: A tumtum is a creature in its own right, and is not sanctified.

And we reject this:

No; everyone agrees that there is no uncertainty concerning a tumtum as a creature in its own right,

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

with regard to a male and a female

alone

is there uncertainty.

And their dispute is concerning another matter, as it is explained:

If it

urinates in the place of the male organ, everyone agrees that it is male,

and sanctified.

When they disagree is concerning one that urinates in the place of the female organ.

The master,

the Sages hold: This tumtum is of uncertain sex, for

we are concerned that its male organ may have turned,

that its organ doubled inwardly and reached the place of

its female organ,

and therefore it urinates from there.

And the master,

Rabbi Shimon holds:

we are not concerned

that it turned; it is certainly female, since it urinates in the place of the female organ.

And Rabbi Shimon son of Yehuda holds:

It is like that which Rabbi Ila'i ruled: A tumtum among animals, one that urinates in the place of the female organ, is non-sacred,

and is not sanctified with the sanctity of the firstborn.

Rabbi Yohanan raised a difficulty

concerning this ruling of Rabbi Ila'i.

Who

is it

who paid no heed neither to the first tan­nnay nor to Rabbi Yishmael,

for they said in the Mishna that a tumtum is not slaughtered either in the Temple or in the country, since it is of uncertain sex? For even Rabbi Yishmael disagrees with the first tannay only with regard to an androgynos, but with regard to a tumtum he agrees that it is of uncertain sex. And you are necessarily dealing with one that urinates in the place of the female organ, whereas Rabbi Ila'i said that it is certainly female and has no sanctity whatsoever.

And we raise an objection:

Why should Rabbi Yohanan not also say, “

Who paid no heed to the later Sages

of the Mishna,” for they too hold that a tumtum is of uncertain sex?

For Rav Hisda said: The dispute

of the Mishna

concerns an androgynos. But with regard to a tumtum, everyone holds that it is of uncertain sex.

And if so, the ruling of Rabbi Ila'i was not in accordance with any of them.

And we answer:

Rabbi Yohanan does not hold in accordance with Rav Hisda.

Rather, he holds that according to the later Sages, a tumtum too is a creature in its own right.

And we refute this:

If he does not hold so,

why is he astonished at Rabbi Ila'i?

Let him say that he stated the ruling in accordance with the later Sages.

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

And we answer:

This is also what Rabbi Yohanan is saying

Rabbi Yohanan:

Who abandons two

tannaim, the first tannay and Rabbi Yishmael,

and acts in accordance with one,

in accordance with the later Sages?!

And we consider the matter:

In accordance with whom does Rabbi Ila'i hold?

And we answer:

It is like that which Reish Lakish said: They said that a tumtum is

of

uncertain sex only with regard to a human being, since his male organ and female organ are in one place,

and it is impossible to examine him by urination.

But with regard to an animal,

which it is possible to examine, we see: if it

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

And if it

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

And all the tannaim of the Mishna hold this way. For the Mishna deals with a tumtum that urinates in the place of the male organ, which is certainly male and sanctified with the sanctity of the firstborn; nevertheless, according to the first tannay it is not slaughtered in the Temple, because it is unfit for sacrifice, since it appears like one with a defect because it has no male organ. And Rabbi Yishmael and the later Sages disagreed with the first tannay only with regard to an androgynos, but with regard to a tumtum they agree with him; and one that urinates in the place of the female organ is certainly female according to everyone, and Rabbi Ila'i issued his ruling in accordance with everyone.

Rav Oshaya challenged

the statement of Reish Lakish, that one who urinates in the place of the female organ is female:

But let us be concerned that perhaps

it is male and

its male organ turned into its female organ,

for, as a result of the organ doubling, it urinates from the place of the female organ.

Abaye said to him: In accordance with whom

should we be concerned—is it

in accordance with Rabbi Meir, who is concerned for the minority!?

For it is an uncommon matter that its male organ should turn into its female organ, and do we show concern for an individual opinion?

Abaye bar Avin and Rav Hananya bar Avin both say: Even if you say that it is the Sages,

who are not concerned for the minority, we nevertheless refute this: “Perhaps its male organ turned.”

And the reason is:

Since it changed

to become a tumtum,

it changed

,

also, so that its male organ turned into its female organ. That is, it is common in a person who has changed from the ordinary state that there should be additional changes in him.

And we answer:

There is one who says: It changed, and there is one who says: It did not change.

For the Sages and Rabbi Shimon son of Yehuda in the beraita disputed this matter: with regard to one that urinates in the place of the female organ, is it female or of uncertain sex, since we are concerned when it has changed? And Rabbi Ila'i issued his ruling in accordance with Rabbi Shimon.

Let us say:

This matter of

“it changed” and “it did not change”

is a dispute of

the tannaim.

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

a woman,

his betrothal is a betrothal,

and his wife requires a bill of divorce as a stringency, in case he is male.

And if he

was betrothed, his betrothal is a betrothal.

And the one who betrothed him is forbidden to the relatives of the tumtum, such as his mother and his sister, for perhaps it is female, and they are therefore his mother-in-law and his wife’s sister.

And he performs halitza

with his brother’s widow as a stringency, if there is no other brother there, because perhaps he is male and his brother’s widow is forbidden to marry outside before he performs halitza [but if there is another brother, he performs halitza, because perhaps the tumtum is female and his halitza is of no consequence].

And halitza is performed for his wife

as a stringency, in case he is male, and his wife is forbidden to marry outside without halitza.

And they perform yibbum with his wife

that is, it is also permitted to perform yibbum with his wife, for whichever way one regards it, the one performing yibbum is permitted to this woman: if his brother, the tumtum, was male, she is permitted to him by virtue of yibbum; and if he was female, so that his betrothal was not a betrothal, “his wife” is permitted as an unmarried woman [but the tumtum does not perform yibbum, since he cannot father children and establish a name for his brother].

And it was taught in another beraita: The wife of a tumtum performs halitza and does not undergo yibbum.

Is it not that everyone holds in accordance with Rabbi Akiva

that he

said that a sun-eunuch,

who is a eunuch from his mother’s womb,

neither performs halitza nor undergoes yibbum.

And likewise his wife neither performs halitza nor undergoes yibbum, because the eunuch never had a time of fitness to father children, and we do not apply to him “that his name should not be erased from Israel,” for he is already erased and standing.

And in this they disagree: The one who says that he performs halitza, that halitza is performed for his wife, and that yibbum is performed with his wife,

holds

we do not say: Since it changed

to become a tumtum,

it changed

also to raise the possibility that it is a sun-eunuch; perhaps, if the tumtum were torn open, it would become clear that he was indeed male and that his wife had been betrothed to him, but he is a sun-eunuch, and his wife is exempt from yibbum.

And the one who says that she performs halitza but does not undergo yibbum

holds:

We say: Since it changed

to become a tumtum, it also changed to raise the possibility that it is a sun-eunuch. And since his wife is exempt from yibbum, it is forbidden to perform yibbum with her, for she is the wife of a brother not in a place of a mitzva [nevertheless, she performs halitza, for there is concern that he was not a eunuch and his wife is forbidden without halitza].

And we reject this:

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

And we raise the possibility that it is a sun-eunuch. And the beraitot do not contradict one another.

This

which says that she undergoes yibbum is

Rabbi Eliezer,

who says that the wife of a sun-eunuch undergoes yibbum [since he can be healed]. Therefore, the wife of the tumtum undergoes yibbum whichever way one regards it: if he is male, then his wife is permitted by yibbum even though he was a eunuch; and if he was female, then his “wife” is merely an unmarried woman.

And that

which teaches that she does not undergo yibbum is

Rabbi Akiva,

who holds that the wife of a sun-eunuch does not undergo yibbum.

And we consider the matter:

And who

is this

tannay in accordance with Rabbi Akiva,

who holds that the wife of a tumtum performs halitza but does not undergo yibbum?

If you say Rabbi Yehuda, this

Rabbi Yehuda

certainly makes him a eunuch

the tumtum?!

For we learned: Rabbi Yehuda says: A tumtum that was torn open and was found to be male may not perform halitza, because he is like a eunuch

certainly, and his halitza is of no consequence, since he cannot “establish a name for his brother” and is not included in the section of yibbum; and likewise his wife is exempt even from halitza, in accordance with the view of Rabbi Akiva. Therefore, it is impossible to establish the teaching that she performs halitza but does not undergo yibbum in accordance with him.

And we answer:

Rather, it is Rabbi Yose son of Rabbi Yehuda.

For it was taught in a beraita: Rabbi Yose son of Rabbi Yehuda says: A tumtum does not perform halitza

where there are other brothers who are able to perform halitza,

lest he be torn open and found to be a sun-eunuch

and his halitza is not halitza. Thus, Rabbi Yose son of Rabbi Yehuda holds in accordance with Rabbi Akiva, and on the other hand holds that the tumtum is not certainly a eunuch, but of uncertain status; and if there were no other brothers, he would be obligated to perform halitza because of the uncertainty, in case he is not a eunuch.

Therefore, the wife of a tumtum requires halitza because of the uncertainty, in case he is male and not a eunuch. And she does not undergo yibbum, lest he be a eunuch.

And we raise an objection:

Is it obvious to

Rabbi Yose son of Rabbi Yehuda

that a male will be found?

For his uncertainty concerns only

the possibility that, after he is torn open, he will be found to be a sun-eunuch.

Is it so that every

tumtum

that is torn open is found to be male, and not found to be female?

For there is also uncertainty that perhaps a female will be found, and she is not fit for halitza?

And we answer: Indeed so:

He stated “perhaps” and “perhaps”! Perhaps he will be torn open and found to be female. Alternatively,

he is

also male,

but there is uncertainty

that perhaps he will be found to be a sun-eunuch.

And we consider the matter:

What difference is there

between Rabbi Yehuda and Rabbi Yose son of Rabbi Yehuda concerning the halitza of a tumtum? For both of them said that he does not perform halitza. And what practical difference is there whether this is because the tumtum is certainly a eunuch or because he is of uncertain status?