And the Sages Did Not Know: Early Rabbinic Approaches to Intersex

By Sarra Lev

This book explores the question: How did the rabbis of the first two centuries CE approach bodies that are born with variant genitals—bodies that they could not identify as definitely male or female? The rabbis had constructed a system in which every behavior was governed by one’s sex/gender, posing a conundrum both for people who did not fit into that model and for the rabbinic enterprise itself. Despite this, their texts contain dozens of references to intersex.

And the Sages Did Not Know examines the rabbis’ legal texts and concludes that they had multiple approaches to intersex people. Sarra Lev analyzes seven different rabbinic responses to this conflict of their own making. Through their rulings on how intersex people should conduct themselves in multiple circumstances, the early rabbis treat intersex people as unidentifiable males or females, as indeterminate, as male, as non-gendered, as sui generis, as part-male/part-female, as a sustainable paradox, and, finally, as a way for them to think about gender, having nothing to do with intersex people themselves.

This is the first such work that concentrates primarily on the potential effects of these rabbinic texts on intersex persons themselves rather than focusing on what the texts offer readers whose interest is rabbinic approaches to sex and gender or gender diversity. Although the rabbinic texts do not include the voices of known intersex people, these materials do offer us a window into how one small group of people approached intersex bodies, and how those approaches were both similar to and different from those we recognize today.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Jan 2, 2024
• ISBN: 9781512825183

Sarra Lev

Sarra Lev is Professor of Rabbinics and Chair of the Department of Rabbinic Civilization at Reconstructionist Rabbinical College and Jewish Reconstructionist Communities.

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Cover: And the Sages Did Not Know, Early Rabbinic Approaches to Intersex by Sarra Lev

AND THE SAGES DID NOT KNOW

Early Rabbinic Approaches to Intersex

Sarra Lev

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2024 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

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Printed in the United States of America on acid-free paper

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Hardcover ISBN: 978-1-5128-2517-6

eBook ISBN: 978-1-5128-2518-3

A Cataloging-in-Publication record is available from the Library of Congress

To my beloved Sharon

and in memory of Kathleen Corcoran, my tent-mate

Contents

Preface

Notes on Usage

Introduction

A Brief Excursus on Rabbinic Intersex

Chapter 1. Frames of Reference

Chapter 2. Deconstructing the Binary, or Not?

Chapter 3. The Sui Generis Model

Chapter 4. The Uncertainty Model: Creating Contingency Plans

Chapter 5. The Non- Model and Genre: What a Difference Wordplay Makes

Chapter 6. The Maleness Model: Making a Male

Chapter 7. The Part/Part Model: Dissecting the Body

Chapter 8. Encountering an Androginos: The Truth of Paradox

Epilogue

Glossary

Notes

Bibliography

Index

Acknowledgments

Preface

I came to the topic of intersex almost twenty-five years ago as a talmudist interested in rabbinic views on sex, gender, and sexuality. The rabbis of the first two centuries CE (and their rabbinic descendants to this day) use categories of intersex as a medium to speak about these subjects; naturally, I gravitated to those texts.¹ That led me to stories of intersex persons living today. Reading and listening to those stories taught me about some of the struggles, victories, delights, and passions of some intersex individuals. I have learned about the complicated politics of using the word intersex or the acronym DSD (disorder or difference of sexual development).² I have learned about the need of some persons born with variant genitals³ to be considered one of the two binary sexes and others to maintain their sex/gender status as intersex. I have learned about invisibility, erasure, forced surgeries, identity, and fierce pride. Variant genitals are not technically a disability; but, in some ways, there is overlap in how intersex persons and people with disabilities are treated—and, in other ways, there are vast differences. As someone who lives with an invisible disability, I have found that some aspects of this subject have resonated with me, while others have provided a sometimes painful, sometimes joyful, and always moving education. I thank the activists who have lent their voices to the struggle and taught the rest of us about some of their experiences.

Notes on Usage

Translation

My goal is to make this book as accessible as possible to the reader who is unfamiliar with rabbinics or, alternatively, with gender and sexuality studies. At the same time, I have striven for accuracy and brevity, which sometimes require using technical terms from one field or the other. With Hebrew technical terms, if there is an equally appropriate English term, I have used that (for example, I translate nazir into nazirite). If the translation does not accurately reflect the original, I have used the original (for example, I have not translated halakhah into law). For cases such as these, I have provided a brief glossary for words that are not easily accessible. I have also explained essential terms for a chapter in the notes.

Editions

For the sake of accessibility, where available, I have quoted from printed editions rather than manuscripts. I note manuscript variances in the notes, where relevant. For the Mishnah, I use the Vilna edition. For the Tosefta, the text is Saul Lieberman’s,¹ where possible, and M. S. Zuckermandel’s,² otherwise. For the Mekhilta d’Rabbi Yishmael, I use the Horovitz-Rabin edition.³ For the Sifra, I use the Weiss edition.⁴ For Sifre Bamidbar, I use Kahana’s⁵ edition. For Sifre Devarim, I use Louis Finkelstein’s edition.⁶ In my notes, I also reference Sifre Zuta. There are no extant manuscripts of this work, but Saul Horovitz produced a printed edition⁷ by combining genizah fragments, medieval commentaries, and pieces from a midrashic work known as Midrash Hagadol.⁸

Transliteration

Where necessary, I have included the text in its original language, along with its translation. Sometimes, however, I want to discuss the usage of a particular word in the text (for example, the word ish, man, around which much of the discussion in Chapter 5 revolves). In these cases, I have striven for accessibility by transliterating the word for non-Hebrew speakers into a pronounceable rendition of the original, according to modern Hebrew pronunciation. My transliteration generally follows the chart below, which is a mix of some of the styles in current usage, including the Association for Jewish Studies (AJS) style, the general purpose style in the Society of Biblical Literature Handbook of Style, and other choices that I have found in scholarly books of similar genres. In particular, when an א (aleph) begins or ends a word, I omit it altogether, as it is silent. In the middle of a word, I use a single close quote for א and a single open quote for ע (ayin). I render words that are commonly used in English—and therefore have a common spelling—according to this spelling. I have used the AJS style for titles of Talmud tractates and for other commonly used names and titles.

Introduction

In 1993, in The Five Sexes: Why Male and Female Are Not Enough, biologist Anne Fausto-Sterling wrote: Western culture is deeply committed to the idea that there are only two sexes.… But if the state and the legal system have an interest in maintaining a two-party sexual system, they are in defiance of nature. For biologically speaking, there are many gradations running from female to male; and depending on how one calls the shots, one can argue that along that spectrum lie at least five sexes—and perhaps even more.¹ Fausto-Sterling’s article was groundbreaking in scientifically addressing what many gender theorists had addressed only theoretically: the mutability and indeterminacy of the categories of biological sex. These theorists sought to dislodge previously held conceptions of sex and gender. For decades, gender was understood in contrast with sex, the former being socially constructed, while the latter was biologically determined.² Anthropologist Gayle Rubin convincingly established that, despite the intractability of the categories of male and female, behavior and genitals were not intrinsically connected.³ Judith Butler pushed Rubin’s findings one significant step further. Simply put, she, as well as others, claimed that not only the categories of gender but the binary categories of sex are socially constructed.⁴ Butler questioned the very division of humanity into two categories of sex: male and female.⁵

Fausto-Sterling’s work shattered a silence about variant genitals that had pervaded Western culture. In her pioneering work, she denounces Western culture for eradicating all signs of sexes that defy the categories male and female, giving the two-sex system … the appearance of being both inborn and natural.… Today, she lamented, children who are born ‘either/or–neither/both’—a fairly common phenomenon—usually disappear from view because doctors ‘correct’ them right away with surgery.⁶

In contrast, the rabbis of the first and second centuries CE not only refrain from the cover-up that Fausto-Sterling critiques; they actively discuss two categories that cannot comfortably fit into their binary gender system—an androginos (a person or animal possessing a combination of male and female genital features) and a tumtum (a person or animal whose genitals are concealed).⁷ However, we must not make the mistake of assuming that visibility implies either a more expansive gender arrangement or a less repressive reality for intersex persons⁸ living under rabbinic culture. As Michel Foucault has demonstrated, a proliferation of discourse is not indicative of less repressive social constraints.⁹ Although some early rabbis treat the categories of androginos and tumtum as separate sexes, and although rabbinic texts discuss them at length, it would be almost two millennia before the advent of identity politics, liberalism, or humanism.

Nor should we make the converse error of assuming that the fact that the rabbis do not focus on bettering intersex lives, or on gender inclusion for its own sake, implies that they view androginoi or tumtumin¹⁰ unfavorably. For the most part, intersex bodies pose a problem only by virtue of the rabbinic propensity for categorization and the difficulty that the rabbis face in fitting them neatly into known binary gender categories. They concern the rabbis primarily insofar as they represent a challenge to the rules of gendered behavior. Rabbinic gender is (perhaps paradoxically, given how much the sages discuss intersex) halakhically binary. The sages are presented with a person (or an animal) who, on the one hand, must, like everyone, conform to certain rules of behavior meant only for one of two gender categories and, on the other hand, cannot conform.

This slipperiness does not generate any single approach toward defining the sex/gender of an androginos. That is to say, the sages’ discomfort with the failure of an androginos to fit into the gender boxes that delimit all behavior does not force them to unanimously squeeze all androginoi into a definite gender. Quite the contrary is true. Rather than adopt a single approach toward sex/gender variance, the rabbis have several ways of solving the problem. In this work, I explore each of these modes of treatment separately, as a distinct model or approach to categorizing intersex persons.

Since I wrote this book to be intersectional—contributing to the fields of rabbinics and gender studies—parts of the Introduction will be more or less appropriate to the needs of different readers. I begin with some background on the term intersex (and sex and gender as a whole) and then offer background on the term rabbinic. Following these two sections, I review some of the influences that led to this book, as well as scholarship that has already engaged the subject. I describe how this work builds on, and how it differs from, the analyses of those that came before it. Finally, I break down my methodology, summarize the chapters, and offer some words on terminology.

Let us begin the journey.

Sex, Gender, and Intersex Today

A myriad of situations reveal how deeply ingrained sex and gender categories are in our day-to-day experience. Studies demonstrate that even on the most superficial level of our consciousness, we feel adrift without these categories.¹¹ This disquiet rises to the surface, particularly when we notice someone we cannot immediately peg as male or female; our minds scramble to categorize, laboring to determine which binary classification we might assign them. Gender theorist Judith Lorber tells this story: The child in the stroller was wearing a dark blue T-shirt and dark print pants. As they started to leave the train, the father put a Yankee baseball cap on the child’s head. Ah, a boy, I thought. Then I noticed the gleam of tiny earrings in the child’s ears, and as they got off, I saw the little flowered sneakers and lace-trimmed socks. Not a boy after all. Gender done.¹²

Binary gender is also entrenched in language. In many languages, the moment that one attempts to write a smooth, non-gendered sentence about a person (and, in some languages, even about inanimate objects), one gropes for prose that does not invoke gender. The very use of singular pronouns forces us into gendered conventions (barring communities that have adopted gender-neutral pronouns). It is at birth, however, that we most feel the hegemony of this particular binary in today’s Western culture. Before being asked if their newborn is healthy, how much the baby weighs, or whether a birth parent is doing well, more often than not new parents hear, What did you have? By What did you have, we inevitably mean, What sex is the newborn? Iain Morland writes: The peculiarity of that commonplace identification, which conflates genitals and gender, social expectations and anatomy, is thrown into relief when contrasted to the fact that one would not declare other aspects of a person’s identity within seconds of their birth—for example, ‘Congratulations, it’s a liberal’ or ‘It’s a heterosexual.’ ¹³ From the external appearance of genitals (sex), we profess to know that the infant is either a boy or a girl (gender).¹⁴ In the essay to which I referred in the opening of this Introduction, Gayle Rubin coins the term sex/gender system to describe the phenomenon by which cultures come to assign entire systems of gendered conventions based on genitals.¹⁵ Morland makes his argument about the gendering of newborns in the service of a greater claim—not just that biological sex should not indicate gender but, as Judith Butler argues, that the division into these two categories of sex is itself flawed.¹⁶

A primary site for the controversy over intersex bodies is in the operating rooms of today’s Western hospitals, where, if a doctor decides that a small penis is actually a clitoris, or that a large clitoris is actually a penis, intersex infants may be surgically fixed, so that their genitals appear female or appear male.¹⁷ It is not only the surgical eradication of a more comprehensive understanding of sex that is at stake; rather, it is the very lives of those persons who are affected by unnecessary and involuntary genital surgery, often with deleterious effects. In the period since the publication of Fausto-Sterling’s first article, opposition to the medicalization of intersex has made important strides, thanks to a group of dedicated intersex activists.¹⁸ But the fear of ambiguity and uncertainty—themes that run through this entire book—continue to threaten the quality of many intersex lives.¹⁹

Although uncertainty may seem like a natural response to intersex bodies, if we grant that Butler is correct (and I do), the categorization of the human body into two sexes and the very notion of ambiguity are as social as any other categorization.²⁰ Although in this book, I will significantly temper the now-popular view that Judaism posits multiple genders, the early rabbis do invoke categories that they treat neither as male nor as female. This system of multiplicity should, ostensibly, solve the problem of sex variance. As we shall see, however, what occurs in the rabbinic texts is far more complex.

Who Are the Early Rabbis and What Are They Doing?

The early rabbis, or tannaim, were long thought to have comprised the dominant institution governing Jewish affairs in Palestine during the first two centuries of the Common Era. In the wake of more recent studies, most now agree that the rabbis of this period constituted a movement, rather than an institution, and that they had only as much power as their individual communities bestowed upon them based on their charisma or personal authority.²¹ The material that they produced, however, forms the basis of two millennia of Jewish law.

The primary early rabbinic sources in which the subject of intersex appears can be found in three different corpora: the Mishnah, the Tosefta, and the compilations of Midrash Halakhah (halakhic midrashim; hereafter, also referred to simply as midrash). The material is divided by genre. The Mishnah and the Tosefta contain mostly straightforward halakhah (loosely translated as rabbinic law or rabbinic legal opinions).²² These present hypothetical cases, and render rulings, often attached to corporal punishments.²³ Midrash halakhah as a genre connects halakhot back to biblical sources.²⁴ Midrash takes as its starting point that scripture is the perfect word of God. The rabbis read any seeming imperfection (redundancy or superfluity, confusing words, unclear pronoun references, or theological incongruities) to convey hidden meaning.

These works all belong to the earliest layer of rabbinic literature. The Mishnah was compiled (orally)²⁵ at the beginning of the third century CE; the Tosefta and the various compilations of Midrash Halakhah are believed to have been compiled (also orally) sometime between one generation later and the end of that century.²⁶ The compilations comprise material, however, that spans approximately two centuries and, in some cases, possibly more.²⁷

The contents of all these works cover roughly the same basic categories of law on ritual, civil, and criminal matters; the Sabbath and festivals; agriculture; the sacrificial cult; family; and purity. Within each of the genres, gender is a fundamental underlying principle, but rather than philosophical treatises or overarching theories, this material comes in short discrete units culminating in one or more halakhic pronouncements. Rarely do these texts state outright any theories about where an androginos or a tumtum sits in the rabbinic sex/gender system, or even entertain the question explicitly (although the midrashim come close, and there is one notable exception in the minority opinion of Rabbi Yose in the Tosefta, which I explore in Chapter 3).²⁸ Thus, most of the conclusions that I draw about intersex, sex, and gender are gleaned from these legal pronouncements, rather than stated directly in them.

How does one harvest these gleanings? I return for a moment to Judith Butler. According to Butler, the work of gendering occurs through what she refers to as performance—the consistent public repetition of gendered social acts: This repetition is at once a reenactment and reexperiencing of a set of meanings already socially established; and it is the mundane and ritualized form of their legitimation.²⁹ If we think of gender as performance, as Butler argues, it is helpful to think of halakhot as the stage directions for these performances. How persons born with a specific set of genitals should behave is primarily a question of which halakhot they are required to follow, which they are exempt from following, and which they are excluded from altogether. My question here is how these rabbis direct the performance of gender when it comes to intersex persons.

We might expect, given the strictly binary and heteronormative biblical system from which many of these halakhot emerged, that the rabbis might defend that biblical precedent with their last breath. Sally Gross, for example, describes the response of fundamentalist Christians to intersex persons: It is scant wonder, therefore, that fundamentalist Christians, who could be expected strongly to support the dichotomy that looms so large in the idealized model of the family, should feel threatened by the phenomenon of intersexuality and should seek to find religious arguments against it. It is not uncommon for Christian fundamentalists, faced with intersexuality as a brute fact, to adduce scriptural grounds for the condemnation of avowed intersexuality, at least, as ‘unnatural’ and as something that is at odds with the will of God as expressed in the order of creation.³⁰

The early rabbis have no such response;³¹ they recognize the existence of an androginos and a tumtum, and they treat them dispassionately. In this book, I parse both the ways in which the rabbis rule on an androginos (and sometimes a tumtum) and how we might interpret those rabbinic rulings with a modern eye.³²

Where Do I Come In? A Literature Review and More

Feminist scholars of rabbinics (paralleling trends in ancient studies and classics) have written a considerable number of works over the past half-century on the effects of patriarchy in the rabbinic texts, on how the rabbis treat women, on the rabbis and sexualiti(es), on rabbinic constructions of masculinity, and on rabbinic constructions of the body, to name just a few of their subjects. A subgroup of these studies (particularly, those focused on late antiquity) centers not only on what we now consider (and were sometimes then considered) marginal gender and sexuality (i.e., behavior) but also on marginal bodies. Their subject matter has included bodies that did not match normate³³ models of male and female³⁴ but also bodies that did not match normate models of beauty and of wholeness.³⁵ This book relies heavily on the methodologies and the research of many of these works; much of that research and the research that you will read here is directly or indirectly indebted to feminist and womanist theories and methodologies developed over the past half-century (or more) and to the overlapping fields of gender studies and queer studies, which have generated and enriched interest in this expanding number of subjects.³⁶

This work also stands on the shoulders of other scholars who have written about intersex in rabbinic texts. Foremost, Charlotte Fonrobert has dedicated several in-depth articles to the topic, in which she lays out some of the issues and materials upon which much of this book is based. Fonrobert frames the conversation in a larger context, both cultural (as central to the effort of regulating sexual relations)³⁷ and theoretical (as a tool in analyzing the relationship between sex and gender, between the body and the text, between the body and culture³⁸ and as the very choice made by the compilers … to foreground gender as an organizing category of rabbinic law and normativity).³⁹ Fonrobert makes clear that her interest lies beyond bodies that do not conform to normate models of male or female: I want to sideline—heuristically only, not conceptually—the figure of the androginos itself, and the issues, problems, and possibilities that the seductiveness of hybridity has to offer.⁴⁰

Building on the work of Fonrobert, Max Strassfeld approaches the topic from a different angle. In his dissertation, Classically Queer: Eunuchs and Androgynes in Rabbinic Literature, he explores the position of the androginos and the natural eunuch⁴¹ as they reflect the rabbinic view of hybridity and, ultimately, masculinity.⁴² In the introduction and conclusion of Strassfeld’s dissertation, he touches on the impact that the study of rabbinic intersex has on contemporary transgender lives; but it is his article Translating the Human: The Androginos in Tosefta Bikurim that really focuses on this topic.⁴³ Strassfeld’s recent book, Trans Talmud, puts sophisticated scholarship to work exploring some of the early and late rabbinic texts on eunuchs and androgynes as they relate to trans and intersex issues today. Unlike other authors who have addressed these texts, Strassfeld spends time discussing exclusively intersex issues, particularly in his third and fifth chapters. There, he analyzes two passages from late rabbinic literature using the lens of intersex stories and, in turn, uses the Babylonian passages to reflect on intersex lives now.⁴⁴ The other two chapters of his book are devoted to similar explorations of connections between trans lives and two early rabbinic passages.

Ironically, given their very different positions, Strassfeld is not the first to use these texts on intersex to reflect on trans issues. In fact, in 1967, Rabbi Eliezer Waldenberg (who sat on the supreme rabbinic court in Jerusalem for many years) precedes him. Waldenberg employed these texts in two halakhic rulings on transgender issues and himself draws on other such writings.⁴⁵ Hillel Gray examines these same modern rulings to argue that a strict genotypical understanding of sex is counter to Jewish tradition, also hoping to improve halakhic approaches to transgender surgeries.⁴⁶ In addition to the extensive considerations of rabbinic intersex mentioned above, these texts have been invoked in a number of disparate contexts: as examples of theoretical interstitial categories,⁴⁷ in thinking about Jewish childhood in the Roman period,⁴⁸ in Preuss and Rosner’s catalog of talmudic medical conditions,⁴⁹ in research on rabbinic disability,⁵⁰ in books and articles on Christian theology (usually to promote the notion of a God-given continuum of sexed bodies),⁵¹ and even in poetry.⁵² In short, a number of scholars, activists, and rabbis have read these rabbinic texts, but barring Strassfeld’s recent book, none in the service of exploring what they have to say about intersex in particular.

Many academic and activist enterprises have likewise tended to set aside the fundamental struggles of intersex persons and organizations while using intersex bodies to make their points on a variety of issues. In writing this book, I have become keenly aware of the many intersex activists and scholars who object to the use of their bodies to this end.⁵³ Intersex activist and author Morgan Holmes, for example, writes: Whether the motivation is to argue a utopian or dystopian morality tale, to consolidate biomedical power, or make a feminist point about the horrors of a two-sex system, there is a prevailing demand for intersex persons to be hermaphrodite caryatids bearing the burdens of social order for everyone else.⁵⁴

This book demonstrates that the use of intersex bodies to think with about sex and gender is not a new phenomenon. This is precisely the project in which the rabbis themselves were engaged almost two thousand years ago. The sages consistently and actively employ their own categories of intersex to contemplate the intersections between gender and inheritance, holiness, purity, and commanded-ness, among other issues. Though the ways in which the rabbis understand intersex bodies may vary, one position is the same throughout. In these cases, androginoi or tumtumin serve as prototypes in the discourse, representing what does not fit neatly into the predefined (often biblical) categories of male and female. The primary underlying question at stake in halakhot in which an androginos or a tumtum appears is: Given that men and women are treated differently under X circumstances, what do we do when we cannot define someone as either? Building on the work of earlier scholars but also forging new paths, I hope to sort out the various ways in which the rabbis speak about and understand intersex persons (and, sometimes, animals). I do this with the explicit aim of focusing not on what intersex categories can teach us about early rabbinic attitudes toward sex, gender, masculinity, or gender identity (insofar as identity is a rabbinic category at all) but on what they can teach us about early rabbinic attitudes toward intersex itself.⁵⁵

What does it mean for this project that I am trying to move away from thinking with intersex bodies while simultaneously focusing entirely on the rabbis who do precisely that? Clearly, I must land somewhere in between. Thus, although it is not my goal to examine the rabbis’ notions of sex and gender, it must inevitably be a part of the conversation (as, for example, in Chapter 2). However, even while asking more general questions, I think about these texts not as a pretext for a different conversation but as a discussion with implications for actual people living in the first and second centuries CE and those who are living now.

Over the years that I have been working on this book, I have encountered pushback about the project from scholars in various contexts. They have expressed hesitations ranging from It is unlikely that the rabbis ever met an intersex person, to The rabbis of the early rabbinic period had very little influence, so there is little chance that an intersex person was ever subject to these laws. Some have claimed that the rabbis only used intersex categories to think with and that they had little or no experience with, or interest in, intersex people.⁵⁶ Some even claim that the rabbis invented the categories of androginos and tumtum as a thought experiment, solely to discuss gender categories and their boundaries.

I want to acknowledge outright that this is not a book about intersex people. This project does not seek to discern anything about intersex people living in the rabbinic period. It is, rather, a book about people who talk about intersex people. Nevertheless, I believe that the rabbinic conversation is not purely theoretical and could have influenced people living at the time.⁵⁷ Although few scholars believe that the rabbis of the tannaitic period had a great deal of influence, and it is possible that no intersex person at that time was ever subject to these laws, I find this unlikely. As we shall see in Chapter 1, ancient Mediterranean texts discuss intersex persons and refer to cases of intersex births. In these texts, intersex is not used as a thought experiment. Moreover, intersex infants would certainly have been born among Jews. It is likely that rabbis would have had knowledge of these births, as news would naturally spread in small communities with local midwives.

Regardless of whether the rabbis knew intersex persons themselves, or whether they primarily used intersex bodies to explore a wide range of issues, the texts have affected intersex persons in various historical periods since then, and they continue to do so. Nowhere is this effect more obvious than in contemporary halakhic sources, such as the following decision by Rabbi Eliezer Waldenberg (Tzitz Eliezer). When consulted about surgery, Waldenberg offers this opinion:

If the problem of an actual androginos lies before us (as I was shown in the hospital a few years ago [where] a child was born with a penis and also with vulva and a path, and they spoke there too about performing surgery on his/her body), it is permitted to perform surgery and to change her/him into a type of certainty, since it is accepted by halakhah (and so too by medical science) that s/he is not [capable of] producing offspring. And indeed, in that case, it is better to operate on the female genitals and to change them into a male so as to account also for the opinion that s/he is capable of producing offspring.⁵⁸

אם תעמוד לפנינו הבעיה על אנדרוגינוס ממש (כפי שהראו לי בביח לפני כמה שנים שנולד ילד עם גיד וגם עם שפות ושביל. ודיברו גם אז על ביצוע ניתוח בגופו), שגכ יהא מותר לנתחו ולהפכו לסוג ודאי בהיות ומקובלת ההלכה (וכן במדע הרפואי) שאינו מוליד. ואמנם אז מוטב יותר לנתח אברי הנקבות ולהפכו לזכר, כדי לצאת גם ידי הדיעה שמוליד܂

Waldenberg’s description of this infant’s genitals is inaccurate (see Chapter 7). What is more relevant here is that he is called upon to make a halakhic decision based on these rabbinic texts. Waldenberg’s opinion demonstrates that the texts that these rabbis left behind on the subject of people born with variant genitals have formed the backbone of decisions made by rabbis to this day, regarding Jewish intersex persons. Over the past decades, studies about the rabbis’ approaches to non-normate persons have proliferated; and despite methodological limitations, we have gleaned what we can from the texts and extracted relevance where we may. The subject of intersex is no different. This book, therefore, will assume that these legal rulings are no less relevant to intersex people living under rabbinic law than are halakhot regarding other underrepresented groups such as women and persons with disabilities.

To address in some small way the absence of intersex voices in the rabbinic texts, throughout this book I have included stories of intersex people living today. This is my response to two essential problems, although it cannot solve them. The first is that we know nothing about the lives of intersex people living under rabbinic Judaism in the first two centuries CE. We have evidence only of what the rabbis thought about those lives. The second problem is that rabbinic literature rarely assumes individuality; for the rabbis, every androginos should be treated in the same way as every other androginos. (This is how the rabbis generally approached all categories of people.) Nowhere will a halakhah consider what an individual androginos would desire, feel, look like, or act like. Thus, we have no way to assess how an intersex person might have felt or thought during any of the time covered by these two centuries.⁵⁹ With that in mind, I hope to open up these texts for intersex persons living now, reading them as living, breathing works of Jewish culture, history, and (currently) identity.⁶⁰

Some Words on Methodology, Theories, and Choices

Microreading

While I was attempting to determine how I might characterize my methodology, I was reading the introduction to Beth Berkowitz’s Animals and Animality in the Babylonian Talmud. There, Berkowitz uses the term microreading, which she bases on the method of microhistory, an approach to historical research that privileges the lives of individuals, and thus often focuses on the nonnormative.⁶¹ Likewise, microreading in this book turns the spotlight away from the rabbis themselves (though, of course, it is their views I am recording) and onto androginoi and tumtumin. As Berkowitz writes, microreading takes the small events and marginal figures to have their own significance, not only insofar as they fit into a master narrative.⁶²

Berkowitz also ties her methodology of microreading to the notion of microaggressions, the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, that communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.⁶³ Microreading in this book shines a light on the ways in which intersex persons are, like Berkowitz’s subjects, marginalized in a culture of binary gender norms. The term microreading carries with it several further connotations appropriate to my own project: it evokes the practice of reading small amounts of text, rather than large swaths,⁶⁴ and the practice of reading deeply, rather than broadly.⁶⁵ Both strategies offer a useful way of achieving the goals laid out by Berkowitz, as information about the nonnormative is usually to be found as incidental four-leaf clovers hidden in a vast pasture.

Scope: Particularism and the General Principle

Early rabbinic halakhah tends to be highly particularistic in its stated concerns. Each case that I discuss in this book has an extremely narrow focus, answering a decidedly specific halakhic question. One methodological issue that may come up for the rabbinics scholar, therefore, concerns how much of a general principle (in particular, about sex/gender) we can extract from a specific case. I will argue that we can draw general principles from combinations of texts⁶⁶ and that we can derive overarching approaches to intersex that thread through rabbinic literature.

Law and Rhetoric: Two Lenses Intertwined

The question of what general principles we might extract from these individual halakhot is another matter, which is both a legal question and a rhetorical one.⁶⁷ It is clear at many points in the literature regarding intersex that halakhic exigencies propel the discussion. This is particularly noticeable when the rabbis apply what I will call the precautionary principle.⁶⁸ In these cases, the rabbis exercise caution by applying gendered stringencies to intersex persons, often casting them as one gender or another for utilitarian purposes; these types of rulings direct intersex persons to perform either maleness or femaleness, depending on what is at stake in the case at hand.⁶⁹ For example, in a case in which only a man is obligated to perform a particular commandment, an intersex person is likewise obligated so as to avoid potentially transgressing by not performing that commandment. This obligation is not an indication of a preference for maleness when it comes to intersex persons, but a contingency.

The precautionary principle is only one lens through which to inspect this material. Although the rabbis often default to this principle, it is by no means the only direction that halakhah can take. Moreover, the rhetorical effects of the literature (as opposed to its strictly legal outcomes) are also quite varied.⁷⁰ As we shall see, each model that I present in this book elicits its own set of questions. Asking about the principles behind these halakhot and about their effects allows us a much wider window into the imaginations of the rabbis as we read texts that may, initially, seem straightforward.

Anachronism

Over the past two decades, an expanding group of historians has shown a growing interest in developing nuanced treatments of anachronism in the field of history.⁷¹ This represents a major shift from the strict historicism that has traditionally characterized the academic discipline. What each researcher means by anachronism varies, as do the ways each of them mobilizes it with respect to their sources. Their work does not claim to supersede or supplant historicism; rather, it seeks to temper the absolutist warp of historical distance with a weft of familiarity.⁷²

The exploration of the roles that anachronism might play in the examination of historical texts does not look only to what the past might offer us in the present but also to what the present might offer for our understanding of the past (a defiant—or, one might even say, mutinous—notion within the field of history). In a 2005 article on the subject, Nicole Loraux proposes what she calls a controlled practice of anachronism, which begins with the distancing required to avoid assuming that we know what it meant to be living in antiquity but does not end there. Rather, she suggests going towards the past with questions of the present in order to return towards the present, steadied by the ballast of what we understand from the past.⁷³

In this book, I incorporate the practice that Loraux suggests. While ever aware of maintaining the element of historical distance, I make certain choices that are, by their very nature, anachronistic. Two of these stand out. The first is my use of the term intersex to refer to the ancient categories of androginos and tumtum, a choice that I address more fully in A Brief Excursus on Rabbinic Intersex, following this Introduction. The second is my inclusion of stories from contemporary intersex persons in my chapters. In the section Where Do I Come In? above, I described the role that I hope these contemporary stories can play in ameliorating both the lack of voices of androginoi and tumtumin in the rabbinic texts and the rabbis’ lack of attention to the needs of people born with variant genitals. I make the move of bridging between these vastly different contexts as a reminder that then, as now, when we talk about intersex, we are talking about people. Context will undoubtedly render certain elements of these models nontransferable. Nonetheless, engagement with ancient texts can offer us elements to adopt or reject and, most important, elements with which we can enter into productive conversation.

Embracing Vagueness, Silence, and Reparative Reading

At times during the writing of this book, I have thrown up my hands after many hours of looking at a text, uncovering no underlying theory that made sense to me. In the same vein, after putting something down in writing, I often found myself repeatedly murmuring, Yes, but on the other hand.… It is at these times that I have turned to one of my favorite articles, In Praise of Vagueness: Uncertainty, Ambiguity and Archaeological Methodology, by Tim Flohr Sørensen. Although Sørensen’s writing focuses on archaeology, his conclusions have everything to do with research in general. In this article, he writes that vagueness is a cultural factor, which is easily overlooked or even purged deliberately in the pursuit of evermore factual, quantitative and falsifiable detailing in the discipline.… [V]agueness is sometimes even an empirical fact, and in order to understand social reality, we also need to be able to capture vagueness as vague rather than explaining it away or simply leaving out the observations that are unclear or ambiguous.⁷⁴ In this book, the reader will find that I have heeded Sørensen’s appeal, and left these instances of vagueness in the texts intact. Indeed, they are sometimes even underscored by my decision to read silences.

As Foucault argues in History of Sexuality, silence functions alongside the things said.⁷⁵ I include the reading of silence among my strategies as I collect the various data with which I construct my arguments.⁷⁶ This reading strategy can (for better and for worse) both broaden the number of alternative readings and, at times, intensify vagueness itself. However, I would posit that the very notion that there is a single possible reading of any text often stems from a lack of creativity and imagination (although, of course, not all readings are equal). Rather than scuttle one viable interpretation in favor of another, therefore—in an embrace of vagueness—I have decided, in places, to present more than one interpretation. In Chapter 3, I have even presented two entirely different conclusions that I consider equally viable.

Finally, my work is indebted to the late brilliant author and one of the great sages of queer studies, Eve Kosofsky Sedgwick. In her Paranoid Reading and Reparative Reading, or, You’re So Paranoid, You Probably Think This Essay Is About You, Sedgwick critiques the practice of paranoid reading, i.e., unveiling the oppressive elements of a text to the exclusion of other reading practices. She argues that paranoid reading has hijacked critical theory in the United States. Sedgwick does not suggest that we eschew this practice but that we consider it one position⁷⁷ among many to employ in our reading praxis: [F]or someone to have an unmystified view of systemic oppressions does not intrinsically or necessarily enjoin that person to any specific train of epistemological or narrative consequences. To be other than paranoid … to practice other than paranoid forms of knowing does not, in itself, entail a denial of the reality or gravity of enmity or oppression.⁷⁸ What Sedgwick offers as a complement to paranoid reading is reparative reading. Though she is vague about how to engage in reparative reading, she enjoins the reader to employ several theoretical practices and to be open to surprises: Hope, often a fracturing, even a traumatic thing to experience, is among the energies by which the reparatively positioned reader tries to organize the fragments and part-objects she encounters or creates.⁷⁹

In this book, I have taken up Sedgwick’s gauntlet and employed varied reading practices in these chapters. Not all theories are equal to the task of analyzing all subjects, texts, or discourses. In each chapter, I have applied theoretical models that illuminate the workings of the rabbinic approach that I focus on there. My interest in presenting the redeeming qualities is not to be apologetic (the polar opposite of paranoid). I have no intention of, or investment in, disguising the rabbis’ problematic views on sex/gender, or on intersex in particular. In fact, I do not wish to emphasize either oppression or redemption but to fluctuate, engaging both poles and everything that lies between them, in order to allow the reader to be surprised, as Sedgwick suggests. Also like Sedgwick, I prefer to regard these as practices, rather than as methodologies or ideologies.⁸⁰ Thinking of them as practices allows me to shift back and forth among them, keeping them in constant flux, and including other practices in the course of these shifts. I hope that the reader, too, will shift back and forth, garnering a complex picture of the numerous rabbinic representations of and approaches toward intersex bodies.

In what follows, I am asking my readers to come along for the ride. That will mean different things for different people. For gender studies scholars, it might mean temporarily suspending what many in gender studies accept as true, in order to follow the (sometimes obscure) paths of the rabbis’ thinking processes. In numerous cases, I write in the voice of the rabbis, rather than in my voice. In Chapter 4, for example, I write: It is impossible to know whether the blood is menstrual blood, given that a tumtum or an androginos could be male. By the standards of current gender theory, this statement would betray the assumption that bodies that menstruate are necessarily non-male. Current gender discourses (and current understandings of gender) belie that assumption.⁸¹ I hope that the reader will understand these instances as representing the voices of the rabbis, as it is often awkward to explain this in the moment; the alternative (writing, the rabbis believe or some such qualifier each time) would make the writing much too cumbersome.

For rabbinics scholars, coming along for the ride will mean something entirely different. In rabbinics, it is still rare to question binary gender at all; in fact, the above paragraph may make little or no sense to many rabbinics scholars. I ask those rabbinics scholars to suspend what they know of sex and gender, and to accept (even if only for the length of this book; but, I hope, for longer) various premises about gender and bodies that they may not previously have encountered (for example, that it is no longer possible to claim that a man cannot menstruate or give birth).⁸²

The presumption of this book is that the words we use matter. Most of all, they matter to the people we are speaking about, although not only. This is not at all a new thought, but neither is it trivial. When I taught these texts to my students, one commented that the texts have no heart, that the discussions are all intellectual, and that they do not demonstrate compassion toward the human beings behind the legal controversies. I hope that through this book, I will bring some heart back into the conversation and expose the slivers of heart that may already be there.

Chapter Summaries

I begin this book with a pre-chapter Excursus on the parameters of the category rabbinic intersex and who should and should not be included in that category. There, I engage the question of whether using the term intersex with reference to the rabbis is an anachronism. I argue that being clear about what I mean by the word while also consistently placing intersex in its cultural context allows me to use the term with regard to antiquity while avoiding presentism. I use intersex, therefore, to describe only what, in its own context, challenges an otherwise binary sex/gender system; this requires redefining the bodies that fit into this category for each cultural context.

Chapter 1 lays the foundation for the rest of the book by describing the forces that influence the rabbinic discussion of intersex (although we do not know to what degree). I open with the role of scripture and its definitively binary sex/gender system, and argue that the rabbis both adopted and pushed back against the biblical binary. I then move to Roman Palestine to explore texts from the Roman world. There, I investigate possible intersections between ancient Mediterranean attitudes toward intersex and the early rabbinic material. I also discuss the limitations in using either scripture or materials from the ancient Mediterranean to inform a study of rabbinic intersex.

Having set the scene in Chapter 1, the heart of this book lies in the remaining chapters, in which I embark on a detailed analysis of early rabbinic texts on intersex. I bracket this analysis in the second and final chapters of this book with two texts that are foundational for understanding the subject. Chapter 2 presents the opening bracket, T. Bikkurim 2:3–7 (hereafter referred to as Seder Androginos).⁸³ I open the book with this text and dedicate a separate chapter to it because it is the principal locus of early rabbinic halakhot that speak about an androginos. This text clusters many halakhot spread throughout the corpus into a single block organized solely around intersex. Seder Androginos is a classic example of the uncertainty model, tackled separately in Chapter 4. It employs the precautionary principle, the guiding principle by which the sages manage their uncertainty by selecting options that minimize or eliminate the potential for major halakhic transgressions. In Chapter 2, I analyze both the organizing principle of the text and its contents to interrogate Fausto-Sterling’s assertions that Seder Androginos disrupts the gender binary and that it provided a means for integrating hermaphrodites into mainstream culture.⁸⁴ Regarding the former claim, I conclude that we can read the text as both disrupting and reinforcing the binary, sometimes even simultaneously. Regarding Fausto-Sterling’s latter position, that the rabbis make room in their legal system for an intersex person to live as an intersex person, I conclude that this text does recognize an alternative to strictly male or female behavioral norms. At the same time, the alternative often (although not always) places an intersex person at the bottom of the gender hierarchy, below women. So, too, in this chapter of Tosefta, the system is still primarily organized around the sex/gender binary.

Chapter 3 delves more deeply into the final line of Seder Androginos—the opinion of Rabbi Yose that an androginos is a creation sui generis. Whereas the material that precedes Rabbi Yose explicitly seeks to define which rabbinic laws an androginos must follow, Rabbi Yose’s statement is devoid of legal content. The first half of Chapter 3 argues that, unlike the other discourses concerning intersex, Rabbi Yose’s opinion is ontological rather than practical. He seeks to define what sex an androginos is regardless of the rabbis’ rulings on how s/he should behave within the halakhic system; he answers that an androginos is sui generis. The second half of the chapter proposes two decidedly different conclusions that one might draw as a result of reading Rabbi Yose thus. The first conclusion argues (following Strassfeld) that Rabbi Yose’s opinion makes a literal and figurative out-law of an androginos. The second conclusion (modeled on philosopher Gilles Deleuze) argues that Rabbi Yose provides an opening for the possibility of a sex/gender outside the binary.

Chapter 4 investigates how the classification of safek, uncertainty, which pervades rabbinic literature, is applied to intersex bodies. This classification declares that an object or a