Bikkurim, Chapter Four, Mishnah Three
In this mishnah we see that in some ways the laws that apply to a hermaphrodite are the same laws that apply to women. What the Mishnah seems to be saying in todays mishnah and yesterdays is that while a hermaphrodite is mostly treated as if he was male, and therefore he can marry a woman, we must be concerned lest he is actually a female. This leads to many stringencies which are enumerated here.
And in what ways is he like women?
1) He causes impurity with red discharge, like women;
2) And he must not be secluded with men, like women;
3) And he doesnt make his brothers wife liable for yibbum (levirate marriage);
4) And he does not share [in the inheritance] with the sons, like women;
5) And he cannot eat most holy sacrifices, like women.
6) At his birth his mother counts the blood of her impurity like [they do when they give birth to a] girl;
7) And he is disqualified from being a witness, like women.
8) If he had illicit intercourse, he is disqualified from eating terumah, like women.
Section one: A woman becomes a zavah when she has a red discharge (at a time other than when she is menstruating). A hermaphrodite who has a red abnormal discharge is impure, like women. Were s/he to be considered a man, such a discharge would not make him impure.
Section two: A hermaphrodite cannot be secluded with men, the same rule that applies to women. We see that a hermaphrodite cant be secluded with anyone, because we dont know what sex she/he is.
Section three: If a mans brother is a hermaphrodite and the man dies without a child, his wife is not liable for levirate marriage with the hermaphrodite, as she would be if he was a man.
Section four: If a man dies with male and female children, the males inherit and the females are maintained by the money left in the estate. We saw yesterday that the hermaphrodite is not maintained with the girls, because he might be male. Today we learn that he is not treated as a boy either, so he doesnt share in the inheritance. We should think of this law as reflecting the principle the burden of proof is upon the claimant. He cant prove that he is female, so the other girls can say to him, You dont share in being maintained until you can prove that you are female. But he also cant prove that he is male, so the other male children can say to him, You cant share in the inheritance until you can prove that you are male.
Section five: Only priests can eat most holy sacrifices. Daughters and wives of priests do not. Since the hermaphrodite might be female, s/he too cannot eat these sacrifices.
Section six: Yesterday we saw that when a child is born, his mother counts 7 days of impurity for a boy, and then 33 days in which any blood she sees is pure. For a girl she is impure for 14 days, and then for 66 days any blood she sees is pure. When it came to the pure days, a woman who gives birth to a hermaphrodite counts only 33, as if the child was male. Here we learn, that when it comes to the impure days, she counts 14 days, as if the child was female. Both of these rules are stringencies, for we must be concerned lest the hermaphrodite is male and lest she/he is female.
Section seven: Only males can serve as witnesses, at least in most areas of halakhah. The hermaphrodite cannot serve as a witness, lest s/he be female.
Section eight: A daughter of a priest who has had forbidden intercourse (adultery or incest) can no longer eat terumah. This rule applies to the hermaphrodite, lest he is a female. Note that a male priest who has forbidden intercourse is not disqualified from eating terumah. Were the hermaphrodite to be considered male, he could keep eating terumah. Again this is a stringency.