QUESTION: The Gemara cites several sources to prove that there is no doubt about whether the gender of a Tumtum is male or female, but rather it is considered an entirely new gender, neither male nor female.

The Gemara cites a Beraisa that teaches that the Torah excludes a Tumtum from being offered as a Korban Shelamim when it says that an animal may be brought as a Shelamim "whether it is a male or a female" (Vayikra 3:1). The Beraisa infers from the verse that a Korban Shelamim must be either a male or female animal, but not a Tumtum.

RASHI (DH Im Nekevah) seems to be bothered by a question on the Gemara's proof. How can the Gemara prove from this Beraisa that a Tumtum is neither a male nor a female but rather a new entity? Perhaps a Tumtum is a male or a female, but since its reproductive organs are concealed from view one cannot know for certain whether it is a male or a female, and thus it remains a Safek -- its gender is indeterminate. Perhaps the verse means that one may not offer a Tumtum as a Korban because its gender is unknown, and not because it is a new gender.

Rashi answers that the Torah would not exclude a Tumtum because its gender is in doubt, because "there is no uncertainty before Hash-m." The Creator knows whether a Tumtum is a male or a female, and therefore the Torah would not exclude a Tumtum from being offered as a Korban just because man is not aware of the animal's gender.

Rashi's words are difficult to understand. How can Rashi suggest that the Torah does not allow one to offer a Tumtum as a Shelamim because its gender is in doubt? Since both a male and a female animal may be offered as a Korban Shelamim, a Tumtum should be acceptable as a Korban Shelamim!

(a) Rashi is suggesting that perhaps the Torah disqualifies a Tumtum from being offered as a Shelamim even though it is either a male or a female, because the Torah requires that one be able to determine for certain whether the animal is male or female. If one cannot determine whether it is male or female, then even though it is undoubtedly one of the two it may not be offered as a Korban Shelamim.

We find similar teachings elsewhere in the Gemara. For example, the Gemara in Bava Metzia (6b) teaches that if one cannot determine whether an animal is part of a flock from which Ma'aser Behemah has been separated, the animal is positively exempt from being counted towards the separation of Ma'aser Behemah. The Gemara derives this from the word "Asiri" in the Torah, from which it infers "Asiri Vadai v'Lo Asiri Safek." (Similar expositions may be found in Kidushin 73a, "Mamzer Vadai v'Lo Mamzer Safek," and in Sotah 28a, "Tamei Vadai v'Lo Tamei Safek.")

However, if this is Rashi's intention, then what answer does Rashi propose to his question? Rashi's question was that perhaps the verse means to exclude a Tumtum from being offered as a Shelamim even though it is not a new gender. It may not be offered because an animal is accepted as a Shelamim only when its gender can be positively determined. Rashi answers that the Torah would not teach such a law, because "there is no uncertainty before Hash-m" Who knows whether this animal is a male or a female.

Rashi's answer is difficult to understand. While it certainly is true that Hash-m knows the gender of this animal, the Torah might be excluding a Tumtum from being offered as a Shelamim because man cannot determine the gender of the animal, just as the Torah excludes items from other laws because man cannot determine their identity (Ma'aser Behemah, Mamzer, etc.).

The answer to this question may depend on the reason for why a Tumtum's gender is considered a Safek. From the words of TOSFOS (DH Aval and elsewhere), it is clear that a Tumtum is considered a Safek because its reproductive organs are concealed. According to this understanding, the Torah's teaching ("and not a Tumtum") indeed can be interpreted to mean that one may not offer an animal when man does not know its gender.

However, Rashi may have a different understanding of why the gender of a Tumtum is considered a Safek. Rashi may understand that all Tumtums are considered to be of the same gender, but we do not know whether that gender is male or female. (This is similar to the question of the gender of an Androginus. It is clear that every Androginus is considered to be of the same gender. The doubt in the case of an Androginus is whether the Torah wants all of them to be treated as male, all as female, or all as a new entity.)

Accordingly, the Torah would have no reason to cite "Tumtum" as an example of a gender-Safek. As far as the Torah is concerned, there is no basis to have any doubt about the gender of a Tumtum. All Tumtums are to be treated in a certain way; this way was clear to the Torah, and it should have been clear to us as well. Unfortunately, the Halachah became forgotten at some point such that we now are in doubt as to the gender of the Tumtum. However, the Torah has no reason to expect us to forget and have such doubts. (According to Tosfos' understanding of Tumtum, the Torah should expect us to have doubts as to the gender of a Tumtum, since the Torah knows that we cannot be aware of what reproductive organs lie underneath the skin-covering of the Tumtum. However, according to Rashi, the actual organs on the specific Tumtum in question are not pertinent. Regardless of what organs it has, it is treated the same way as every other Tumtum. Therefore, there is no reason for why people should have any doubt as to the correct gender of a Tumtum -- other than the Halachah becoming forgotten, which is something that the Torah has no reason to suspect will happen.)

Therefore, if the Beraisa says "'Im Nekevah' -- and not Tumtum," it must be excluding a Tumtum because it is a new entity and not because there is a doubt as to its correct gender. Had the Beraisa said "'Im Nekevah' -- and not a Safek," then it indeed would have meant that an animal cannot be offered as a Korban if its gender is indeterminate. However, since the Beraisa says instead, "and not a Tumtum," even though a Tumtum should have a positively-determined gender as far as the Torah is concerned, it is clear that the Tumtum must be a new and unique gender, and neither male nor female. (M. KORNFELD)

QUESTION: Rav Chisda (end of 41b) says that the dispute in the Mishnah (41a) involves only an Androginus, but not a Tumtum. Everyone agrees that a Tumtum is a Safek (it is either male or female), and therefore it is a Safek Bechor. The Gemara (42a) suggests that Rav Chisda's statement is the subject of a Machlokes Tana'im. The Chachamim maintain that a Bechor that is an Androginus has no Kedushah, while a Tumtum has Safek Kedushah. Rebbi Shimon ben Yehudah maintains that a Tumtum is an entirely new gender and is not a male, even out of doubt, and thus it possesses no Kedushah.

The Gemara here rejects this possibility and states that all agree that a Tumtum is not considered a new gender. Rather, if the Tumtum urinates from the place of the body where the male organ is situated, then everyone agrees that this proves that it is a male. The dispute between the Tana'im involves an animal that urinates from the place where the female organ should be located. The Chachamim are concerned that the male organ may have changed into the female organ, but it still is considered to be urinating from the male organ, and, therefore, the Tumtum is a Safek Bechor. Rebbi Shimon ben Yehudah is not concerned that such a defect occurred, and therefore the animal is definitely not a male and has no Kedushah.

The Gemara says that Rebbi Shimon ben Yehudah agrees with Rebbi Elazar, who says that a Tumtum that urinates from the place of the female organ is a female. The Gemara says further that Rebbi Elazar sides with Reish Lakish, who says that a Tumtum animal that urinates from the place of the male organ is definitely a Bechor, but one that urinates from the place of the female organ is definitely not a Bechor.

The RAMBAM (Hilchos Bechoros 2:5) rules that "if an animal is born a Tumtum, it is a Safek Bechor, and when it develops a Mum its owner may eat it. This applies whether the Tumtum urinates from the place of the male or female organ."

Why does the Rambam rule that even a Tumtum that urinates from the place of the male organ is only a Safek Bechor? The Gemara here clearly implies that it is considered a definite Bechor!

(a) The KESEF MISHNEH answers that the fact that Rav Chisda said simply that a Tumtum is a "Safek Bechor" and did not make any distinction between the places from which it might urinate suggests that the Halachah is that it is always a Safek Bechor, regardless of the place from which it urinates. The Rambam is not concerned that the Gemara states that everyone agrees that a Tumtum that urinates from the place of the male organ is a definite Bechor, because the Rambam maintains that this is a "Dechiyah b'Alma," a mere refutation of the proof. That is, the Gemara says that everyone agrees only in order to avoid being forced to say that Rav Chisda's statement was the subject of a dispute among earlier Tana'im. In reality, though, the Rambam maintains that the Halachah does not follow this "Dechiyah b'Alma," and Rav Chisda's statement is, in fact, the subject of a dispute among Tana'im.

(See the BACH (OC 316, DH ha'Tzad), who writes that the approach of the Rambam, as well as the Rif, in many places is not to rely on the answer of the Gemara when issuing a Halachic ruling, because the answer was given only in order to refute a question.)

(b) The LECHEM MISHNEH answers that the Rambam's source is the Gemara later (57a). The Gemara there quotes Rebbi Shimon ben Yehudah who says in the name of Rebbi Shimon that a Tumtum or Androginus animal does not need to be placed in the pen of animals being counted for Ma'aser Behemah. The Tana Kama, however, maintains that the requirement of Ma'aser Behemah does apply to a Tumtum and Androginus. The Gemara explains that according to the Tana Kama, the gender of a Tumtum and Androginus is a doubt (it might be a male or a female). RASHI there (DH Tumtum) explains that they are subject to the laws of Ma'aser Behemah because Ma'aser Behemah applies to both male and female animals, and thus a Tumtum and Androginus are subject to Ma'aser Behemah whether they are male or female.

In contrast, Rebbi Shimon maintains that a Tumtum and Androginus are considered to be a new gender. Just as the Torah says that a Korban must be a definite male or definite female but not a Tumtum or Androginus, the Torah exempts a Tumtum and Androginus from the law of Ma'aser Behemah (this is derived from a Gezeirah Shavah). TOSFOS here (DH Ki) questions the Gemara's comparison there of Kodshim to Ma'aser Behemah; a Korban that is a Tumtum is considered to be a female when it urinates from the place of the female organ, and a female animal is also subject to Ma'aser Behemah!

The Rambam answers this question differently from Tosfos. The Gemara there (57a) maintains that the place from which the animal urinates makes no difference. That distinction was given only by way of rebuttal. The Tana Kama (57a) maintains that a Tumtum is a Safek, while Rebbi Shimon maintains that it is a separate gender. The Rambam rules according to the Tana Kama, that a Tumtum is always a Safek Bechor, and therefore its owners may not eat it until it develops a new Mum.

The SHULCHAN ARUCH (YD 315:2) rules like the ROSH that a Tumtum that urinates from the place of the male organ is a definite Bechor and must be given to a Kohen. The BI'UR HA'GRA (#7) mentions the Rambam's opinion that whether it urinates from the place of the male organ or the female organ, it is a doubtful Bechor. (D. BLOOM)