Yevamot II 83: Is an Androginos a Creature Unto Itself?

The rabbis question Rabbi Yosei's assertion about those who are androginos as a creature unto itself.  A note tells us that Tosafot and Rambam believe this to be true, for s/he is in a permanent state of uncertainty regarding sex.  Ramban disagrees, believing that an androginos is a third gender, neither male nor female.  Other rabbis hold different beliefs, including the notion that these people are half male and half female.  According to Rabbi Yosei's view, an androginos cannot marry a woman and thus cannot enable her to partake of teruma.

To determine whether or not Rabbi Yosei's opinion is valid, the rabbis consider how halacha is determined.  They walk through similar rulings that have been decided with regard to other legal questions.  These include grafting, protracted labour, and forfeiture/proscription.  The argument regarding protracted labour teaches us about bloody show during pregnancy.  When the blood is associated with menstruation, is renders the pregnant woman ritually impure.  However, when the blood is associated with the pregnancy - in example, as part of a protracted labour - the pregnant woman is rendered a ziva, with different consequences.

We are told that Shmuel disagrees with Rabbi Yosei.  And then we are told that Rabbi Yehuda believes that a tumtum who is 'torn' and found to be have male sexual organs is man.  He cannot perform chalitza because he is treated like a eunuch.  Others disagree.  We are told about the tumtum of Biri who was betrothed, then 'torn' and confirmed to be a man, and then went on to father seven children.  But what if the tumtum were torn and found to be a woman?  Chalitza should have been avoided in that case, as well.  The rabbis agree that cases where a tumtum is found to be fertile are unusual.

Our daf ends with a discussion of punishments for sexual relations with someone who is androginos.  

Rabbi Eliezer says that sex with an androginos through his male organ, assumed to be anal intercourse, is forbidden while vaginal intercourse is excepted.

Rabbi Simai teaches that an androginos is referred to in Leviticus 18:22, "And you shall not lie with a man as with a woman."  The word 'lie' is stated in the plural.  Only an androginos could facilitate intercourse in more than one way, Simai argues.  The Gemara disagrees because the start of this directive speaks of lying with a 'male'; thus when someone has intercourse with an androginos 'like a male', he has transgressed.

The rabbis who disagree with this interpretation believe that the entire statement refers to sex with an androginos.  Then where do they find proof for the sin of anal intercourse between two men?  The verse begins with the word, 'and'.  "And you shall not lie with a woman..." suggests that before this verse, it would be assumed that you (a man) would not lie with a man, either.

We learn that though he allowed some rights to those who were androginos, Rabbi Eliezer did not believe that they were fully male.  The proof for this comes from Eliezer's opinions regarding animals in line for sacrifice.  The Gemara walks us though sacrificial animals including birds, which are not identified by sex, and other animals, which are identified by sex.  In cases of consecrated animals, it is necessary to know their sex to properly assign their ritual slaughter.  Rabbi Eliezer teaches that animals that are androginos are removed from this group of animals because their sex is in question.  Birds might be of any sex, however, and bird that are androginos can be offered as consecrated animals.  Rabbi Eliezer does not recognize one who is androginos as automatically male or female.

What a challenging, disturbing, hopeful daf.  The rabbis hold varied and thoughtful views about those who have different sex organs than most.  Some of those views offer hope - like the notion that Leviticus 18:22 is referring only to those who are androginos.  Most views confirm the heterosexist, sexist and limiting views that challenge so many people.  Ultimately, it is clear that heterosexual, vaginal intercourse is the only sanctioned sexual activity offered by our rabbis.  It is critically important to ensure that 'gay sex' is not condoned, even if we are speaking of an androginos and a male partner.   I also wonder about the notion that only an androginos could have intercourse in two ways.  A man could have intercourse with an average woman in two ways, as well.