“Congratulations, it’s a…” The sentence welcoming a new baby into the world rolls off the tongue; the last word, eagerly anticipated, reveals whether “It’s a boy!” or “It’s a girl!” A single chromosomal variation carries significant import for the baby’s destiny, in both sociological and spiritual realms. Yet for a small number of newborns, it is far from clear what the future holds. Chromosomal and developmental aberrations can create a situation where the most basic of questions – “Is it a boy or a girl?” – has no easy answer, and a child is barred entry to the privileges (and challenges) of life as a member of either gender.
The struggle of the hermaphrodite or pseudohermaphrodite – the individual with objectively unclear gender identity – is not new. (We will use the accepted medical terminology, but for the reader’s benefit, we will note that the colloquial term is “intersex”; the states we will address can be clustered under the title “intersex conditions” or “disorders of sexual development.”) Rabbinic literature is full of references to the tumtum and the androginos – the former being of uncertain gender because the genitals are obscured, the latter possessing physical characteristics of both genders.[i] However, lacking clear methods of gender determination beyond the obvious visual inspection – which, in these cases, cannot constitute conclusive proof in either direction – Hazal treat these cases as safek (doubt), ruling stringently in many instances to account for both possibilities.[ii] A practical modus operandi is provided, but the halakhic confusion and the psychological yearning for gender identity remain unresolved by Hazal‘s treatment of the subject.
Modern biology and medicine have opened new vistas in terms of both defining gender and reconstructing the body to accord with a desired gender. The new technologies could provide the desired final answer in situations of gender ambiguity. In the age of advanced surgery and noninvasive scanning procedures, the tumtum is not of much concern, but the androginos gives us many questions to ponder. First, what are the halakhic factors that determine gender identity, and how would newly discovered medically-accepted determinants play into the pre-existing halakhic structure? Second, would surgical alterations to genitals affect the halakhic status of the patient? Third, would these alterations be permitted? Even if surgery has no effect on halakhic gender, surgery and/or hormonal therapy are sometimes recommended to solidify the organs and overall physical makeup (including body shape and hair placement) when sexual development is incomplete or has generated mild contradictory elements (such as gynecomastia – i.e., breast growth in males), so the permissibility of gender reassignment surgery is worth examining for these purposes, as well.
Before we begin, it is worth noting that there are several types of androginos, to which different combinations of halakhot would pertain;[iii] for simplicity’s sake, we will ignore these distinctions and refer to all simply as “androginos.” Indeed, this piece will attempt only a brief summary of the topic. As Minhat Hinnukh writes to excuse his own minimal outline of the topic of hermaphroditism, “To [write] extensively about matters of the androginos would pass through the full width of the sea of the Talmud, and this is not the place [for that in-depth treatment].”[iv]
Sexual Development 101
A basic explanation of the development of sexual organs is helpful in understanding hermaphroditism. There are many levels where something may go wrong, and the stage at which the error occurs may be significant in determining the halakhic status of the individual.
A fetus starts out with undifferentiated gonads, an undetermined genital area, and two sets of ducts linking the gonads and genitals. The gonads are the first to differentiate, ordered by the presence or lack of a Y chromosome (this chromosome is generally present only in males). The gonads become testes or ovaries, which produce male or female hormones, respectively. The array of hormones that is produced stimulates the growth of one set of ducts (the Wolffian ducts in males, and the Mullerian ducts in females) and the degradation of the other. Male hormones (primarily testosterone) will cause the genital area to develop in a male fashion, while the lack of male hormones generates an individual with an external female appearance.[v] Body shape, placement of hair, and vocal pitch are also determined by male and female hormones.[vi]
Gender ambiguity can result from a problem at any of these levels. The chromosomes – usually XY in males and XX in females – may have a different arrangement, such as XXY (Klinefelter’s syndrome) or XO (X with no corresponding chromosome, called Turner’s syndrome).[vii] (Some unusual sets of chromosomes do not cause abnormal development, and even those that do will not always cause gender ambiguity.)[viii] The gonads may fail to differentiate properly, producing a cross between a testis and an ovary, called an ovotestis. The gonads may not communicate properly with the genital area, whether due to problems with the gonads or genitals, or because hormones from the mother overwhelm the hormones produced by the fetus. Finally, the genital area may simply fail to develop properly even if the appropriate signals are received.[ix]
Halakhic Gender Definition
Gender is essentially a binary question which is, at its most obvious level, determined by non-binary factors. Instead of having a particular physical feature whose presence or absence determines gender, there are a host of bodily characteristics that are generally associated with one of the two genders. These include the actual genitalia, body shape, vocal pitch, and the arrangement of facial and body hair. Hence, in situations of gender ambiguity, it is essential to look for actual binary factors whose presence or absence might conclusively establish an individual as belonging to one or the other sex.
The only such criterion found in Hazal is a positive confirmation of maleness. On Haggigah 4a, Abbayei states that a tumtum who possesses visibly descended testes is considered male; Rashi ad loc. explains that we assume the male genitals are present but hidden. However, we should note that this Gemara refers to a tumtum, not an androginos, so the applications to androginos need to be clarified. Additionally, Kesef Mishneh and Lehem Mishneh argue as to whether Rambam would affirm Abbayei’s assertion that descended testes are enough to consider a tumtum male.[x] Based on the clarification of Minhat Hinnukh, however, it seems that the entire mahaloket is whether the individual is definitely male (and we assume, as Rashi writes, the presence of a hidden penis), or whether we consider the possibility that some female genitals are still obscured, which would make the individual an androginos.[xi],[xii] Hence, we can conclude from this Gemara that descended testes, even without a penis, are sufficient for excluding the possibility of a child’s being female; male or androginos are the remaining possibilities.
A second interesting question arises with regard to the phallus that may be present in an androginos. In an undifferentiated fetus, there is a structure called the genital tubercle, which will develop into a penis in males and a clitoris in females.[xiii] Occasionally, the organ that is developed is intermediate in composition between the two options. A significant precedent emerges from R. Ya’akov Emden’s treatment of such a case, wherein a child was born with normal female characteristics, except that it possessed an external phallus, which was the size of a normal penis but lacked an internal conduit. R. Emden referred to this as a “dildul,” a piece of flesh with no halakhic import, and hence ruled that the child was a halakhic female.[xiv] To put it in modern medical terms, R. Emden rules that a female with clitoromegaly, even in a severe form, is still unequivocally female. On the other hand, it is possible that for R. Emden, a phallus containing a duct for urine would be considered a halakhic penis and would be sufficient to consider the child at least possibly male, even in the absence of testes.
New Possibilities: Internal Examinations, X-Rays, and DNA Evidence
As we have seen, the Gemara establishes that external testes are sufficient proof of maleness. Today, however, we have the ability – through internal examinations, or noninvasive procedures like X-rays – to detect internal organs. What if the external organs are female, but internal testes can be detected?
R. M.D. Tendler writes that even internal testes may be sufficient for exclusion of pure femininity.[xv] R. J.D. Bleich goes further and writes without hesitation, “The presence of testes, either external or internal, is an absolute indication that the child is not a female.”[xvi] Still, both agree that “other criteria may lead to a determination of hermaphroditism”[xvii] rather than pure masculinity. On the other hand, R. Shaul Breisch writes that internal organs have no halakhic significance, and only external genitalia are relevant in halakhic sex determination.[xviii] R. Menashe Klein agrees, affirming in the case of an XY female with internal testes that she is clearly a female.[xix] Similarly, R. Eliezer Waldenberg writes about an XY female:
The external sexual organs appear like those of a female, and [the child] has no external sign of a male organ, and only the special investigations carried out on it showed that there are male cells within the body. Hence, I think that even if we leave it as is [without surgical modification], its law will be that of a female, because the external organs which are visible to the eye are those which establish the Halakhah.[xx]
This mahaloket is central in ruling on cases of complete androgen insensitivity syndrome (AIS), which affects 1 in 20,000 births. In complete AIS, the gonads of an XY fetus properly differentiate into testes, but the fetus fails to develop further because the testosterone produced by the testes is not detected properly. Since no signals are received, the body follows its default program, which is to produce a female. Hence, individuals with complete AIS have internal testes, but externally appear to be completely female; the only outward sign of incomplete femaleness is the lack of menstruation (since ovaries and a uterus are not present).[xxi] If internal testes are considered a positive confirmation of maleness, these individuals are halakhic males or hermaphrodites. However, if only external signs matter, these individuals are halakhic females. In practice, R. Tendler writes about a girl found to have internal testes, “My ‘inclination’ is to consider this girl as a halachic ‘female’ androgenus [sic] despite the lack of ambiguity of external genitalia.”[xxii] However, R. Waldenberg would clearly disagree, because he only considers external genitalia relevant.
What about the opposite case? R. Tendler records a fascinating scenario:
A seventeen year old Yeshiva student experience (sic) occasional hematuria (blood in urine). Routine work-up including x-rays, revealed the presence of uterus and ovaries despite the clear “maleness” of external organs. The hematuria was actually menstruation. Simple surgery followed by hormonal therapy will allow this “boy” to bear children, since ovaries and uterus are perfectly functional. This is a case of “androgenital syndrome” in which the adrenal glands produce excess male hormones swamping the female hormones and resulting in enlargement of the clitoris and developing of male hair patterns.[xxiii]
Regarding the sex of this individual, R. Tendler states, “Halachichally this ‘boy’ is surely a female despite the male organ,” and he is even willing to allow surgery to convert him to a female.[xxiv] (See the discussion of surgical modification below). However, if we only consider external appearance to be significant, this individual would clearly be male, despite the internal ovaries and uterus, and the surgery would likely be forbidden. This is the conclusion of R. Shaul Breisch.[xxv]
Moving to the molecular level, there are other questions to be asked. Modern microscopy and cellular staining procedures have produced a new method of gender determination: karyotyping. This procedure involves examining the array of chromosomes present in each individual cell of a person’s body. If XX is observed, the individual is assumed to be female; if XY is observed, the person is presumably male.[xxvi] Could this simple test be used to resolve cases of halakhic gender ambiguity?
Jonathan Wiesen reports that R. M.D. Tendler “believes that gender identification is best achieved by DNA testing, in conjunction with a complete physical, radiological, and systemic assessment.”[xxvii] R. Asher Weiss also believes that DNA testing can be relevant, but only to confirm a previously arrived-at sex assignment when secondary sex characteristics contradict genitalia, and the determination favors the genitalia.[xxviii] On the other hand, as we have seen, R. Eliezer Waldenberg feels that genetic tests are irrelevant. In Nishmat Avraham, Dr. Avraham S. Avraham cites R. Y.Y. Neuwirth as ruling that DNA is not a determining factor.[xxix] R. Gideon Weitzman of the Puah Institute cites that R. Avigdor Nebenzahl, in a letter to the Puah Institute, agreed that “the law of male or female in the Torah is according to the external visible organs,” rather than genetic material. However, R. Weitzman notes that in personal conversation, R. Nebenzahl agreed that if Hazal had been able to check chromosomes, they might have used this as a factor in gender determination. Still, R. Weitzman writes, “When I discussed this question with other leading Rabbinic authorities, I found that they agreed with defining gender purely by external organs.”[xxx]
Although I am hardly qualified to offer an opinion, it is worth noting that, as established above, there are a number of steps leading from chromosomes to bodily development. While chromosomal evidence might be a convenient binary factor, no array of chromosomes will guarantee a particular pathway of sexual development. Furthermore, while a Y chromosome is generally present in, and only in, males, there are exceptions due to mutations on other chromosomes which play roles in sexual development.[xxxi] Additionally, we now know that genes are occasionally mobile, and may translocate to other chromosomes.[xxxii] Hence, I would be disinclined to use karyotyping as a means of sex identification.
Halakhic Validity of Sex Reassignment Surgery
R. Eliezer Waldenberg is noteworthy for accepting the halakhic efficacy of sex reassignment surgery (SRS). Discussing a theoretical case where the male in a couple undergoes a sex change to become a female, R. Waldenburg writes that the other party does not require a get, because her husband is no longer a male, and hence she is not the “wife of a man,” but rather the “wife of a woman” – a halakhic impossibility.[xxxiii] Additionally, R. S.Z. Auerbach is cited in Nishmat Avraham as having said that after the phallus of an androginos is removed, it is considered a female,[xxxiv] though another citation implies that he disagrees with R. Waldenberg.[xxxv] However, R. Idan Ben-Efrayim cites a spectacular array of lesser-known posekim who reject the efficacy of surgical sex changes.[xxxvi] Rabbis Bleich[xxxvii] and Tendler[xxxviii] both affirm that sex changes are ineffective.
Halakhic Permissibility of Sex Reassignment Surgery
The permissibility of SRS may be divided into several questions: If a child is halakhically male, may female elements be altered? If a child is halakhically female, may male elements be altered? If a child is of uncertain status, can surgery be done to masculinize or feminize the child?
A full treatment of the halakhic permissibility of all forms of SRS is beyond the scope of this article. However, a brief survey is still worthwhile.
In SRS, the relevant mitsvot are the prohibition of male sterilization, which is biblical,[xxxix] and the prohibition of female sterilization,[xl] which is either biblical[xli] or rabbinic.[xlii] (Both prohibitions apply equally to humans and animals.[xliii]) In the case of a halakhic male, SRS to convert him to a female is clearly prohibited; the same would apply to converting a halakhic female to a male. However, surgically assigning a sex to a truly ambiguous case, or “fixing” a minority of genitalia which contradict the majority, is more complicated.
If an androginos might be capable of bearing children, as either a male or female, it would seem to be clearly prohibited to tamper with useful reproductive organs. But what about organs which will never be reproductively useful, such as the penis of an individual with internal ovaries? This may depend on a mahaloket between the Minhat Hinnukh and the Hatam Sofer. Minhat Hinnukh writes that if one is not “ra’ui le-holid” – “fit to procreate,” sterilization is permitted.[xliv] Hatam Sofer, however, believes that the prohibition of sterilization is independent of personal status, and simply depends on the organs themselves.[xlv] In practice, R. Waldenberg relies on the Minhat Hinnukh to permit removal of a testis from a female,[xlvi] R. Moshe Steinberg cites the position of the Hatam Sofer as proof that removing any male organ is prohibited,[xlvii] and R. Z.N. Goldberg prohibits even the removal of female organs based on Hatam Sofer‘s position.[xlviii] Rabbis Bleich[xlix] and Tendler[l] also prohibit feminizing an androginos, without explaining their reasoning. However, Rabbis Steinberg[li] and Ben-Efrayim[lii] permit masculinizing an androginos. R. Steinberg offers no explanation, while R. Ben-Efrayim cites sources indicating that the prohibition on female sterilization is really an extension of habbalah, the prohibition to cause a wound, which is waived in cases of need.[liii] Finally, R. Asher Weiss writes that even if the Hatam Sofer is taken into account, there is no prohibition to remove malformed organs which will never be fit for use in procreation;[liv] this opinion would open up many possibilities for surgical treatment of an androginos.
As Jews, for us to properly relate to people who do not fit neatly into our preconceived boxes, we must learn to synthesize two perspectives. We cannot compromise on Halakhah, but neither may we neglect sensitivity. The intention of this article is to present the first half of the equation, and emphasize the complexity of halakhic principles at play in the context of the androginos. The take-home message is, to cite R. Bleich, that “every decision with regard to the grave and often pain-fraught problems of sex determination requires consultation with competent rabbinic authorities.”[lv] However, this piece would be incomplete without a word about the human element. The curious case of the androginos reminds us that even something as basic as gender is not to be taken for granted, and the most appropriate attitude toward the androginos is acceptance, within a proper halakhic framework. The androginos, too, is a creation of God, and – in the case of a Jewish androginos – lacks not an iota of kedushat Yisrael, which is why the Gemara elaborates the halakhot of the androginos in great detail. Armed with the best of modern medicine and psychology, and guided by the advice of responsible posekim, we must give the androginos the respect due to any fellow Jew (if relevant) and human being faced with a difficult lifelong challenge.
Ariel Caplan is a senior at YC majoring in Biology, and is an associate editor for Kol Hamevaser.
[i] Rambam, Mishneh Torah, Hilkhot Ishut 2:24-25.
[ii] For example, see the fourth perek of Mishnayot Bikkurim.
[iii] For more details on different types of androginos, see Jonathan Wiesen and David Kulak, “‘Male and Female He Created Them:’ Revisiting Gender Assignment and Treatment in Intersex Children,” Journal of Halacha and Contemporary Society 54 (2007): 5-29, at 12-13.
[iv] Minhat Hinnukh 1:2, author’s translation.
[v] Scott F. Gilbert, Developmental Biology, 9th Edition (Sunderland, Massachusetts: Sinauer Associates, Inc., 2010), 511-525.
[vi] Linda J. Heffner and Danny J. Schust, The Reproductive System at a Glance, 3rd Edition (Malaysia: Wiley-Blackwell, 2010), 33-35.
[vii] Lisa Allen, “Disorders of Sexual Development,” Obstetrics and Gynecology Clinics of North America 36 (2009): 25-45, at 27.
[viii] For example, XYY males are not noticeably different from standard XY males; see Jeff M. Milunsky, “Prenatal Diagnosis of Sex Chromosome Abnormalities,” in Genetic Disorders and the Fetus, edited by Aubrey Milunsky and Jeff M. Milunsky (Hong Kong: Wiley-Blackwell, 2010),273-312, at 288-9.
[ix] Carla Murphy, L. Allen, and Mary Anne Jamieson, “Ambiguous Genitalia in the Newborn: An Overview and Teaching Tool,” Journal of Pediatric and Adolescent Gynecology 24 (2011): 236-50, at 239-242.
[x] Rambam, Mishneh Torah, Hilkhot Terumah 7:14; Kesef Mishneh and Lehem Mishneh ad loc.
[xi] Minhat Hinnukh 280:4.
[xii] To be precise, the question is whether we would say “since it has changed, it has changed” – i.e., since the child’s revealed organs are unusual, need we suspect that the hidden area of the genital region is also unusual?
[xiii] Gilbert 523.
[xiv] She’elat Ya’avets 1:171.
[xv] R. Moshe D. Tendler, “Halachic Considerations in the Determination of Sex in the Newborn with Ambiguous Genitalia,” Torah u-Madda (Hebrew) 5 (1975): 24-21, at 21.
[xvi] J. David Bleich, Judaism and Healing: Halakhic Perspectives (Jersey City, NJ: Ktav Publishing House, 2003), 84.
[xvii] Bleich, Ibid., and Tendler, Ibid.; quote is from Bleich, Ibid.
[xviii] She’elat Sha’ul, Even ha-Ezer, Siman 9.
[xix] Mishneh Halakhot 16:47.
[xx] Tsits Eli’ezer 11:78, author’s translation.
[xxi] “Androgen Insensitivity Syndrome,” PubMed Health, August 31, 2010, available at: www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002163.
[xxv] She’elat Shaul, Ibid.
[xxvi] “Karyotyping,” MedlinePlus Medical Encyclopedia (December 1, 2010), available at: www.nlm.nih.gov.
[xxvii] Jonathan Wiesen, “Don’t Judge a Book? Surgical Changes to Anatomical Features in Traditional and Modern Thought,” And You Shall Surely Heal: The Albert Einstein College of Medicine Synagogue Compendium of Torah and Medicine 1 (2009): 315-321, at 318.
[xxviii] Responsum cited in R. Idan Ben-Efrayim, Sefer Dor Tahpukhot (Jerusalem: 2004), 280-2, at 281.
[xxix] Nishmat Avraham, Yoreh De’ah 262:12. Citations from Nishmat Avraham follow the numbering found in the 2007 edition.
[xxx] R. Gideon Weitzman, “Is Gender Determined by External Organs or by Genes?” B’Or Ha’Torah 19 (2009): 26-35.
[xxxi] Murphy et al., 239-42.
[xxxii] Bruce Alberts et al., Molecular Biology of the Cell, Fifth Edition (United States of America: Garland Science, 2008), 203.
[xxxiii] Tsits Eli’ezer 10:25:26.
[xxxiv] Nishmat Avraham, Ibid.
[xxxv] See Ben-Efrayim, 101 and 259.
[xxxvi] Ben-Efrayim, 100-111.
[xxxvii] Bleich, 84. (“Surgical removal [of testes]… does not, however, effect a halakhic change of sexual status.”)
[xxxviii] Tendler, 22. (“The act of surgical castration… is of no halachic import.”)
[xxxix] See Leviticus 22:24, Shabbat 110b, and Shulhan Arukh, Even ha-Ezer 5:11.
[xl] See Leviticus Ibid.; Sifra to Emor, Parashah 7; and Shulhan Arukh Ibid.
[xli] Maggid Mishneh to Rambam, Hilkhot Issurei Bi’ah 16:11, Be’ur ha-Gra, Even ha-Ezer 5:25.
[xlii] Tosafot to Shabbat 111a, s.v. be-zekenah, Rashba to Shabbat 111a, s.v. be-zekenah.
[xliii] Shulhan Arukh Ibid.
[xlv] Shu”t Hatam Sofer 3:20.
[xlvi] Tsits Eli’ezer 11:78.
[xlvii] R. Moshe Steinberg, “Shinui Min be-Androginos,” in Assia 1, ed. by Dr. Avraham Steinberg (Jerusalem: Rubin Mass, 1979), 142-146, at 144.
[xlviii] Cited in Ben-Efrayim, 260-1.
[xlix] Bleich, Ibid.
[l] Tendler, Ibid.
[li] Steinberg, 144.
[lii] Ben-Efrayim, 261-5.
[liii] Ben-Efrayim, Ibid.
[liv] Responsum cited in Ben-Efrayim, at 281.
[lv] Bleich, Ibid.