Tumtum and Androgynous

Rabbi Alfred Cohen

Rav, Congregation Ohaiv Yisroel of Monsey; NY

Journal of Halacha & Contemporary Society XXXVIII; Fall 1999 - Sukkot 5760

Key words: tumtum/androgynous, sex change, surgery

There are a number of places in the Talmud where mention is made of a person termed "tumtum" and also one characterized as "androgynous". (the latter obviously refers to an androgynous person - a hermaphrodite - meaning one who has male as well as female characteristics. This condition can range from the extremely rare true hermaphrodite to variations of intersex, ranging from a female pseudohermaphrodite to a male hermaphrodite). A tumtum has been defined as a person with no specific male or female genitalia, a condition which is exceedingly rare. Probably, both terms are often employed to describe a far more common occurrence, a person born with ambiguous genital signs.

The general tendency in medicine today is to take steps (surgery and/or hormone therapy) to render the child either male or female, by suppressing or removing the ambiguous features. This is done out of the belief that it would be well nigh impossible for a child to develop a normal social or marital life without a definite sexual identification.1

In this paper we will probe the halachic ramifications which result from these complex situations.

What Causes A Tumtum/Androgynous And What Can Be Done

Both male and female genitalia come from the same original tissue [in the developing fetus], and at one time are identical. The only thing that causes these tissues to become male or female is the result of hormones and their actions [upon the developing tissue]... A hormone is defined as a substance that is made in one part of the body and influences another part. This requires that the substance is made correctly, it is secreted into the blood stream, or fluid surrounding cells properly, and that the tissue it is supposed to reach is able to recognize it and respond to it. This process is not dependent on the presence or absence of a Y chromosome. (The chromosome responsible for determining male sex). ...The Rabbis were correct. On the forty-ninth day, a substance called sexual determining factor is made in embryos with a Y Chromosome (the gene that codes for this substance is found only on the Y Chromosome)... Sex is determined by having a Y Chromosome... However, it is possible to have a case where this substance is not made in a genetic male. The result would be a female in every sense of the word except perhaps fertility. (this is an EXTREMELY rare event). In a normal fetus, the testicles are the source of testosterone. However, there are situations where testosterone is made by another part of the body. This will transform a fetus with ovaries and a uterus [to develop some outward signs of masculinization of the genitals]... Depending on the amount of testosterone and how soon after fertilization it is present will determine how closely these genitals resemble male genitals... the reverse problem also exists. If the fetus cannot detect testosterone, then female genitals will develop despite the presence of testicles... It is also possible that one will see degrees of this problem... scientifically speaking, a true hermaphrodite is determined by looking at the tissue that is either an ovary, or a testicle, and finding that it is both. From a medical point of view, when a child is born with ambiguous genitalia, it is always possible to determine the genetic sex... Likewise, it is almost always possible to determine what the problem is (i.e., too much testosterone made, or if it is not being detected properly by its target tissues). [In other words, it is possible for a person to look like a female and yet to have XY chromosomes, indicating it is a male genetically. However, there are practical considerations - even determining the true genetic sex of the child does not always make it possible to correct the problem.]2

There is a great deal of debate among rabbinic authorities about what to do with a person who is a tumtum/androgynous.3

Let us touch briefly on some of the halachic questions that may arise when this difficult situation presents itself:

(A) Is it permissible to take a child who might be a boy and turn him into a girl (it seems that medically this is often the easier and more practical way to solve the problem of dual or ambiguous sexual characteristics). This is a halachic issue since a boy would grow up to have more mitzvot to perform than a girl, and therefore Jewish law has to consider whether it is permissible to take this step.

(B) In order to make the child "look normal", it is sometimes necessary to remove some of the genitalia, thus effectively rendering the child sterile. (Although the child may be unable to beget children in any case.) For example, it is relatively simple for surgeons to remove some of the ambiguous external genitalia and then construct a vagina for the child, thereby turning it into a "girl", at least outwardly. However, this "girl" will not be able to have children, since she has no uterus. Is this permitted, in light of the halacha that it is forbidden to neuter even an animal, let alone a human being?

It is also necessary to factor in the medical reality that even if certain "cosmetic" changes are made, this will not necessarily effect a "change" in the person's sexual identity, which may remain ambiguous. Removing masculine-appearing genital tissue will not necessarily assure that this child will develop as a female, because the receptors for feminine hormones may be absent, or masculinizing hormones may still be secreted by the body. The reverse is also true -"turning" the ambiguous child into a boy cannot assure that he has the receptors to develop secondary male characteristics at puberty.

Since this problem occurs with more frequency than many people realize, and since medical science can do many things now which were not feasible before, these situations raise very real and very difficult dilemmas which major poskim are trying to address at the present time. The present study will seek to explain the halachic background and also the rulings of the rabbis on these issues, from talmudic times until the present.

The Tumtum/Androgynous In Rabbinic Literature

Already in the Talmud we find differences of opinion as to the status of people born with double or ambiguous genitalia:

1. There is doubt whether this is a male or a female.4

2. This person is sui generis, one of a kind, and the rabbis did not determine whether the person is male or female.5 This dictum can be understood as saying that the hermaphrodite is neither a man nor a woman,6 or that there is doubt (safek) about if it is a male or a female.7

3. He is partly male and partly female.8

4. Certainly male.9

The Shulchan Aruch rules that there is doubt if this person is a male or a female, and therefore,

A tumtum or androgynous who betrothed [a woman] or whom a man betrothed, the kiddushin (betrothal) are in doubt and the individuals need to have a get due to doubt.10

The Rambam writes,

Someone who has male organs and female organs is termed a hermaphrodite (androgynous), and it is questionable if he is a male or a female. And whoever has neither male nor female [organs visible] but is "closed" (atum), is called a tumtum, and this [child] is also a [matter of] doubt. If the tumtum is "torn" [i.e., the "closing" (covering) is opened] and is found to be male, then he is certainly a male; and if it is found female, then she is a female.11

Laws of the Androgynous

The majority opinion of the early decisors (Rishonim)16 holds that the status of an androgynous is in doubt (safek) - we cannot be sure whether the case involves a male or a female. Consequently, these rabbis rule that one must follow the stricter opinion in a case of doubt, as we have already mentioned. Thus, the hermaphrodite must don tefillin and tzitzit, must have a brit, although without recitation of the blessing, is forbidden to shave the face with a razor, and if it is the child of a kohen, must follow the rules prohibiting contact with the dead and other forms of tume'ah. The hermaphrodite should wear men's clothing and may not put on the garb of a woman.17 According to this view, the hermaphrodite can marry a woman but cannot be married by a man - "nosei isha aval lo nisa."18 However, it is their belief that the hermaphrodite is not able to have children.19 Thus, marriage would not be an obligation only an option.

The other body of opinion about the hermaphrodite is that we are dealing with a full-fledged male.20 Consequently, these rabbis maintain that the hermaphrodite is obligated by Jewish law to marry.21

The differences between the two groups continue into the question of yibum and chalitza. (when a man dies without offspring, his brother must marry the widow [yibum] or else release her through the ceremony of chalitza). Since it is the contention of the majority group that the androgynous cannot father children, his wife would not need yibum and he could not perform either yibum or chalitza for his sister-in-law. However, the second group maintains that the androgynous must perform yibum/chalitza.22

Tumtum In defining the talmudic term "tumtum", Rambam writes that it is someone "in whom neither masculine or feminine [genitalia] are discernible."23 Tiferet Yisrael24 explains that "the place of the male or female organs is covered with skin."

Unlike the androgynous, whose sexual identification is always ambiguous, the tumtum is either a male or a female, depending on what is determined after the covering of the sex organs is removed. Nevertheless, in the Gemara we find expressed two variant opinions concerning the tumtum: (a) this is a person whose gender is in doubt, or (b) this is a different kind of person altogether (briah bifnei atzmo).25 Normative halacha rules that a tumtum is treated as doubtfully female (safek), who has to follow the stringent opinions as they apply either to males or to females.26

(However, if there are testicles in the proper place, even absent a penis outside the body, the child is considered a male for almost all dinim.)27

The tumtum is obligated by Jewish law to observe all mitzvot as they apply to men, even those mitzvot from which women are exempt. Thus, for example, he must don tefillin28 (even according to those opinions who would not permit women to don them). Similarly, there are opinions in the Gemara that women should not engage in Torah study,29 yet the tumtum is obligated, inasmuch as he might be a man.30

A further halachic question arises if the tumtum/androgynous were born to a kohen. Since the Torah forbids any non-kohen (male) from giving the priestly blessing, there is some question whether a tumtum/androgynous could participate in this ritual. Some opine that he would not be permitted but, nevertheless, may go up to the duchan with other kohanim.31

On the question of a tumtum's performing the mitzvah of yibum/chalitza there are three opinions, which seem to define the situation:32

(a) Some maintain that if surgery on the tumtum reveals that he is indeed a male, he is obligated to perform chalitza and similarly his widow would require it.33 (It is a mitzvah for the brother of a man who died without children to marry the widow and have a child with her, to perpetuate the dead brother's name (yibum). Chalitza, which is performed today instead of yibum, releases the woman from this relationship. Since only a brother capable of having children can do this mitzvah, there may be some question about the tumtum.) This is unlike the rule governing an animal tumtum which even after surgery proving masculinity, is still considered a saris (incapable of having offspring) inasmuch as rabbinic thinking assumes that if one thing went wrong in the sexual development, possibly other things could also have gone wrong in this area. In the case of a human being, some rabbis apparently feel this rule does not always apply.

(b) Rabbi Yehudah holds that the tumtum is unable to have children (saris chama) and therefore he would not be able to perform chalitza, nor would his widow require it. It is considered as if he is not a brother (see Rashi ibid). Even if surgery (or genetic tests) would show that he is indeed a male, since he is a saris (eunuch), there would be no yibum/chalitza.

(c) Maybe he is a saris (unlike opinion (b), where it was taken as a fact). Although we cannot be certain, this opinion maintains, we nevertheless do have to consider this a possibility (choshesh). Therefore, the tumtum should not perform chalitza for a brother's widow if there are other brothers who can do it. But absent other brothers, he should be the one to do it, inasmuch as he may indeed not be a saris chama. Similarly, if the tumtum dies, his wife would need chalitza because of the doubt.

In his ruling on this question, the author of Shulchan Aruch34 writes,

The tumtum performs chalitza but not yibum, because [his status] is doubtful. But if he is "torn" [i.e., operated on] and found to be a male, then if he wishes, he may perform yibum/chalitza. But there are those that say he is a doubtful case, and therefore we should be strict [i.e. and not allow him to perform these rituals].

Specific Halachic Problems

Furthermore, as noted, the androgynous is considered by Jewish law as possibly a male and possibly a female, and therefore obligated to observe all the commandments incumbent upon a man. By turning the person into a female only, the doctors are taking away from this person the ability and the privilege of performing certain mitzvot. Again, this is a halachic problem.

If the doctors turned this child into a female (through surgery and hormone therapy) but the child is actually a male,36 and this "female" grows up and gets married to a man-would this constitute a homosexual relationship, which is strictly censured by the Torah?37

To avoid these multiple problems, Rav Sternbuch writes38 that a child with ambiguous sexual indicia should always be "turned" into a male rather than a female. The only exception39 would be in the case of a child which is clearly a female (verifiable by her having all the external female organs), although possessing in addition certain ambiguous traits.40

One of the leading poskim in the world today is the Israeli sage, Rav Eliezer Waldenberg, author of Tzitz Eliezer, who is often consulted particularly on medical problems. A doctor was once confronted with a case of a child born with apparent intersex characteristics, and he turned to Rav Waldenberg for guidance. In addition to addressing the specific problem, Rav Waldenberg availed himself of this opportunity to expand upon his view concerning similar situations and how they should be dealt with.

The child in question was born with external organs which seemed to be female; however, there also seemed to be an organ resembling testes. Further complicating the situation was that a chromosomal test of the infant indicated it was a male. After surgery, it was found to have no internal sexual organs. The doctor wrote that it was medically easier to make the child into a girl, but asked two questions: is it permissible to make a child whose genetic identity is male, into a female? Further more, is it forbidden to remove the "testes"?

In his responsum, Rav Waldenberg lays down the principle that in these matters, the determining factor is the appearance of the external organs: the key is the visual perception. Consequently, he rules that since all the external organs of this child are of a girl, it is a girl.41 The only problem is removal of the testes, which is forbidden due to the prohibition of castration. However, in this case he rules, since the child is a girl, one can remove the testes, since that operation is not what would make her sterile. Furthermore, even if a child were an androgynous, it would still be permissible to remove the testes, without violating the prohibition of sterilization - since in any case this child is not capable of having a child. This conclusion is based on the Minchat Chinuch,42 who rules that the prohibition against sterilizing (sirus) cannot apply to a person who cannot have children anyway.43

Having given an answer to the specific problem raised by the doctor, Rav Waldenberg then proceeds to expand upon the topic. Considering that this issue is on the cutting edge of modern medical knowledge and technique, his responsum is a highly pertinent foundation for addressing the halachic issues which are now arising.

In the view of Rav Waldenberg, even if a true androgynous were born, having both sets of external organs (a circumstance which is very rare), it is permissible to remove some of these excess organs. This ruling is predicated on the halachic and medical conclusion that the child would not be able in any case to have children. The next question then is which set of organs to remove or modify? According to Rav Waldenberg, it is preferable to make this child a boy, for two reasons:

(A) Since there are those who opine that an androgynous can have children, and

(B) Since we are not certain whether the child is actually a boy or a girl, by removing the female organs we are making a child into a boy, who will be able to perform more mitzvot. Consequently, that is the desirable choice.

At this point, Rav Waldenberg adds a most controversial opinion: if it were advisable (medically) to turn this hermaphrodite into a female, that option is halachically permissible. By removing the male organs, the child will be able to function as a female. According to him, the sexual identity of the child is not established until after the procedure.44 He is also of the opinion that it is best to perform this procedure while the child is still quite young, before it is obligated to perform mitzvot.45 There is a further caveat added by Rav Waldenberg: before any organs are removed, it is necessary to determine if the procedure would indeed result in the child's being truly a female (presumably this could be determined by means of sophisticated medical scans and / or genetic analytical tests).46

A third opinion on this matter is expressed by Rav Eliashiv,47 whose view is that if this ambiguous child were transformed into a "girl" by medical science, it would be forbidden for any man to have sexual relations with her. Since her "vagina" is merely an opening constructed by doctors, there are no sexual relations but rather "wasting of the man's seed", which is an act forbidden by the Torah (Vayikra 18:22).48 Furthermore, in his commentary on his verse, Ibn Ezra cites the opinion of Rabbenu Chananel, which posits that intercourse between a male and another male who has an artificial vagina is considered sodomy.

In summary, we are left with three halachic opinion:49

(A) Make the child into a boy.

(B) It is preferable to make the child a boy, but it is permissible to make it a girl.

(C) It is forbidden to make it a girl.

Sex Change

Even in cases where doctors felt it was necessary to alter or "adjust" the sexual identity of a child born with ambiguous genitals, or for some other traumatic reason, it seems that the procedure is not as successful as it may superficially appear to be. A case was recently reported in the news media51 of a boy who, due to a dreadful accident when he was eight months old, was "turned into a girl" by his concerned doctors. In spite of surgery, hormone administration, and all the cultural trappings of a girl-dolls, dresses, etc. - the child's transition was not as seamless as it appeared. "...Despite his feminized body and upbringing, John in fact rejected his new gender. He tore of the dresses, dreamed of becoming a mechanic and even tried to urinate standing up - despite his reworked anatomy." "I thought I was a freak or something," he told the study's authors. After finally finding out the truth about his status, he proceeded to have his breasts removed and his genitals rebuilt. At 25, he married a woman and adopted children.

Researchers say that this case, though unusual, has important implications for the issue of influencing sexuality. "You can't magically decide somebody is either male or female."52

Some unusual problems do occasionally arise if a tumtum or androgynous was "fixed" as an infant and later in life feels the need for a change in sexual identification. Rav Eliezer Waldenberg spends a considerable amount of time examining various aspects of this dilemma:53 If, after marriage, a man or woman undergoes a sex change operation, does the other spouse have to give (or receive) a get? Although he does not specifically say so, it is apparent from his writing that Rav Waldenberg assumes that any person undergoing such a change must have been originally a tumtum/androgynous, who was operated on to create a specific sexual identity.54 Rav Waldenberg even speculates what blessing this person should recite in the daily prayers - those for a man or a woman?55 Perhaps, he suggests, the blessing should be reworded, "Blessed are You... who changed me into a..."

Is Surgery Required?

The optimal response when a tumtum or androgynous is born might appear to be to seek medical advice and employ whatever surgical techniques are available to obviate the problem or at least to seek to determine the true sexual identity of the child.

Surprisingly, the Rishonim do not agree as to the correct halachic approach: Rashba56 opined that the child should be operated on if possible, and, if found to be masculine, should be circumcised.57

Tosafot, however, were of the opinion that there actually exists no imperative to perform surgery in order to determine the sex of the child (which procedure would clarify the child's sex and consequently also its halachic requirements, depending if it was a boy or a girl).58 Tosafot specifically comment, "although it would seem reasonable [to obligate surgery to uncover the true status], he is not required to [undergo] surgery." No explanation is given for this paradoxical conclusion.

It is very interesting to note that recently, perhaps as a backlash to all the medical engineering which is performed in our modern society, some opposition has begun to surface to the concept that whatever can be improved, should be "improved."

[Hormone treatment is administered to children who are considered too tall or too short by society's standards.] The same kind of intended beneficence drives the medical management of children born intersexed. Many physicians... recommend early cosmetic surgery to try to erase the signs. What's wrong with these "normalization" technologies? First, it isn't clear that they work... Of the follow up studies that have been done on intersex surgeries, none examine the psychological well-being of the subject in any real depth. ...These treatments often backfire. Children subjected to these kinds of treatments often report feelings of inadequacy and freakishness... And the treatments are not without physical risks. For example, intersex surgeries all too frequently leave scarred, insensate, painful and infection-prone genitalia. [Some people] confess to liking their unusual anatomy. But this is the absolutely forbidden narrative - not only rejecting normalization but actively preferring the "abnormal."59

As a final comment, let us note that although the question is peripheral to our study, halachic literature does refer to people who take steps to avoid being put in a situation where they will have to perform a mitzvah. For example, many avoids wearing a four-cornered garment so that he will not have to wear tzitzit;60 or a person camps out in the desert, where inevitably he will have to transgress the Sabbath;61 or he leaves a room so as not to have to stand up in honor of a Torah scholar.62 Perhaps leaving a tumtum/androgynous in limbo is an analogous situation.

Thus, choosing not to operate on a tumtum/androgynous is a further halachic question which needs to be resolved.

With the birth of a child who deviates from the norm, there is an immediate rush to seek the best advice available. Parents pursue the finest doctors, the hospitals with the most modern procedures and facilities, read up on the latest technologies, in order to give their child the optimum opportunities in life. Our purpose in this article has been to bring to the awareness of the public the reality that medical advice must be pursued in tandem with religious guidance. A child's spiritual welfare, no less than the physical one, deserves and requires input from the finest sources, the most learned and knowledgeable rabbis, so that indeed the child will have the best opportunities to fulfill whatever destinies the Almighty has determined.

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