We have pointed out various times during our posts how everything in Torah is related, and that very often that relationship stands out so clearly that one is absolutely awestruck.
The direct connection between our daf and this weeks parsha is certainly one such example.
The parsha opens with the highly unusual law of אשת יפת תואר, the beautiful captive girl taken in war.
In an unprecedented ruling, the Torah permits the soldier who falls for an enemy captive to begin a process whereby he will be able to marry her and even gives him permission to sleep with her once before this process begins, in order to satisfy that lust.
The explanation for this most unusual capitulation to human sexual desire on the part of the Torah is that לא דברה תורה אלא כנגד יצר הרע – “The Torah only spoke against the evil inclination. “
In the heat of war, the Torah understood that if a soldier was not permitted any outlet for his desires, he would carry them out anyway, and thus came up with a permitted way that allowed him to do so if necessary, while never encouraging it.
There is much to discuss about this idea, and the first question that jumps to mind is why is this extreme lust treated any differently to other extreme situations of lust?
The Torah always insists that people have free will and are responsible for their actions, no matter what the temptations, yet here, suddenly it acts completely differently.
Is the lust of a soldier at war really so much stronger than a man whose wife is a Niddah, a homosexual man who has no permitted outlet for his passions, or a single man who isn’t even permitted to masturbate to satisfy his urges, let alone carry on a sexual relationship with someone outside marriage?
Even if we argue that this is a question of פקוח נפש, given the emotional pressures that a soldier is under, we have found that a person is not permitted to practise forbidden sexual relations even to save his life (Sanhedrin 74a,) one of three great transgressions which one may not even transgress with a gun to one’s head.
In the case where the danger to his life comes from his emotional state caused by his desires, this could apply even to a non-married Jewish woman!
We see this from the case (Sanhedrin 75a) where a certain man fell so badly for a woman that he became desperately ill from desire.
The doctors opined that he would never heal unless he got to sleep with her.
The Rabbis ruled that it is better to let him die than to allow him to sleep with her, or even “talk with her from behind the fence.”
Clearly, the fact that a person gets himself into an emotional state that endangers his life does not justify illegitimate sexual behaviour.
It might be possible to distinguish between the two cases in a few ways, among them:
- The reason given by the Gemara why such a harsh ruling was given even in the case of un unmarried Jewish girl (who was not even a Niddah) was either because of פגם משפחה (damage done to the girl and her family) or שלא יהו בנות ישראל פרוצות בעריות (so the daughters of Israel would not be engaged in sexual immorality. )
The former reason focusses on the individual girl and her family whereas the later focusses on societal needs – The good of society takes precedence than the good of this individual, as we need to uphold a moral society at all times.
The case in our parsha is different given that the girl is an enemy captive, and neither of those two concerns apply, at least on a technical legal level.
The fact that the soldier is away from society also lessens the impact on society.
- In the case mentioned in Sanhedrin, the threat to the person’s life came from his lust itself. We cannot allow our girls to become the “medicine” for every person who is unable to control himself. In the case of the solder, the danger is from the war, the lust simply increases that danger, and the permission given by the Torah simply removes that extra danger allowing him to focus on the prime directive of survival and most important, victory for the nation as a whole.
Despite the above, given the extreme stringency with which the Torah usually treats these matters, there is little doubt that the situation of war should be treated as the exception rather than the rule, and however we try our best to understand it, it is likely that it cannot be applied to any other situations and אין בו אלא חדושו .
On our daf, we see that this is not the only allowance made for people at war.
Our Mishna tells us that there are 4 areas in which Chazal were lenient went it comes to soldiers in an army camp:
- They may collect wood from anywhere, even if it does not belong to them.
- They are exempt from washing hands before eating bread.
- They are permitted to eat דמאי (produce bought from an ignorant person who might not have taken tithes.
- They are exempt from putting aside an ערוב חצירות (though they still need basic מחיצות in order to carry within a designated area.
With the exception of the first which involves the biblical prohibition of stealing (probably permitted through the rule of הפקר בית דין הפקר,) these are all rabbinical laws that are waived, but the facts that such allowances were made also makes it clear how much of a need Chazal saw to allow soldiers to focus on the sacred task at hand of achieving victory without having to allocate too much energy to other things that were not practical at the time.
In an even larger concession, the Gemara (Chullin 17a) says that during the wars to conquer the land, the soldiers were permitted to eat forbidden foods if they are hungry, even pig!
What all these things have in common is that the Torah and Chazal have waived certain very important halachik requirements in order to allow soldier to focus on the battle and not use all their energies battling hunger, the evil inclination, or circumstance.
In the context of all of these things, it seems that the although the Torah only spoke against the evil inclination in the case of the captive girl, this is not because the Torah allows people to sin “legally” in order that they not come to sin “illegally,” but because of the unusual situation soldiers face in war where survival and victory has to be their only goal and the Torah therefore chooses not to make them spend their energy fighting their evil inclination in almost certain losing battles.
One of the major objections raised by many in the Torah world against religious youth going to the Israel army involves the spiritual dangers that they face there, given that much of the army is irreligious.
One of the strongest arguments against this comes from the many extreme allowances that the Torah itself makes for those at war, to the point of permitting some very serious transgressions- what it does not do is in any way discourage soldiers from going to fight, whether the war is obligatory or voluntary in nature.
If this is the case in situations where religious life is not possible, how much more so, we could argue, should it be in a Jewish army where so many allowances are made for religious soldiers, such as kosher food, Shabbos observance, and even time to pray and study.
On the other hand, one could counter that there is a difference between leaving one’s own camp to go into battle or to enemy territory, where the religious threat is from the outside, and being in a Jewish camp where the religious temptations come from the inside, from one’s own side.
The former is more likely to be a temporary setback, whereas the chance of long-term assimilation into secular society poised by being part of an irreligious unit is on a completely different level.
One can argue back and forth on this issue, but one thing that we see for sure on our daf is that certain leniencies were applied by Chazal even INSIDE our own camp.
The army certainly does not seem like a place for imposing extra stringencies above the basic requirements of the law, and even certain laws themselves, namely the 4 mentioned in our Mishna, are pushed aside even while in the מחנה itself.
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.
One of the biggest social changes that have taken place in recent years in the western world , together with the greater acceptance of homosexual lifestyles ( a topic for a different occasion but touched on briefly in our earlier post on lesbianism,) is the acceptance of “non-binary genders” or transgender identity.
This gives greater recognition to a small but vocal minority of people who see themselves as neither male nor female in the classical sense of biological features , but as a combination of both, neither, or the opposite of their biological gender.
Although this might seem radical to most conservatives, it is an undisputed fact that
The Torah has always recognized at least 4 different genders or gender permutations- male, female, Androgynous, and Tumtum.
The Androgynous is generally understood to refer to someone who has both male and female sexual organs, whereas the Tumtum is one who has no visible external sexual organs, and whose actual biological gender is thus unknown.
All 4 of these genders are based on biological features, as opposed to the more common phenomena of people who are today known as “transgender” , who generally have biological features of one specific gender and other characteristics of the opposite gender.
As such, finding precedent in the halachik treatment of the Androgynous and Tumtum for a halachik approach to the transgender is far from simple.
Whereas it is certainly worth exploring whether transgender people might indeed fall into one of these two halachik categories despite this fact, at a minimum we should be able to learn something from them regarding the Torah’s approach to what is called in today’s language “gender diversity.”
The Mishna on daf 135 tells us that one may not perform a circumcision on an Androgynous on Shabbos, even on the eighth day, when a male infant may be circumcised despite the shabbos restrictions.
The Gemara learns this from the words את בשר ערלתו -his uncircumcised flesh- namely definitely uncircumcised flesh and not possibly uncircumcised flesh.
The understanding seems to be that seeing as it is not clear whether the Androgynous is considered to be a male despite having the physical symptoms of one, his male organs are not considered halachically to be indisputably male.
As such, even though he needs to be circumcised out of doubt, the obligation is not certain enough to permit the circumcision to be performed on shabbos .
This is quite a jump, given that the Androgynous is generally understood as being someone with both types of genitals- as such, surely we should consider him as one who definitely has “uncircumcised flesh.”
In fact, we could ask a stronger question here : if the Androgynous is not definitely a male and thus not definitely subject to circumcision, then obviously he cannot be circumcised on shabbos- how could one push aside shabbos when the mitzva is subject to doubt?
If so, why is a specific word in the passuk needed to exclude him?
If on the other hand, he definitely has the status of both a male and a female, then his “flesh” certainly has the status of uncircumcised male flesh and the מעוט ( exclusion) in the passuk should not affect him anyway.
Leaving these questions for another time (but refer to Tosfos who deals with them,) the starting point for any discussion about the status of an Androgynous is the fourth chapter of Bechoros, dedicated entirely to this subject.
In the first Mishna, we are told that an Androgynous is sometimes treated like a male, sometimes like a female, sometimes like both, and sometimes like neither.
Some examples given there are that
1. regarding the impurity of a zav or a niddah, he can become impure in either case, as a zav if he has the appropriate type of unhealthy emission, and as a niddah when seeing menstrual blood ( a double whammy.)
2. Regarding the laws of Yichud (seclusion,) he is not permitted to be alone with a male or female, other than his permitted spouse. (Another double whammy)
3. He is permitted to marry a female but not a male.
4. He is permitted to wear male clothes but not female clothes.
5. He is liable to keep all commandments that a man is liable to keep
6. He is treated equally to everyone else regarding any damages or injuries done to him and in all matters of civil law.
7. He does not inherit together with his brothers as if he is a woman but does not get supported from the estate either like girls do (another double whammy). In the absence of other siblings, he inherits everything like any other child would.
8. He may not be sold either as a Jewish slave or maidservant (an advantage perhaps.)
It seems clear from the pattern of these rules that they are based entirely on halachik reasoning, derived from verses or halachik logic, and not on any specific ethical, political, or emotional agendas as to how Chazal felt they should be treated .
Although Chazal were fully aware of the existence of non-binary genders, emotional factors like concern for their plight, though almost certainly present, played minimal or zero role in the way they related to members of these genders- they treated it as a legal matter and acted according to the normal rules of ספק (doubt .)
This was despite the fact that some of these rules undoubtedly placed further limitations and inconveniences on their lives than those placed by the Torah on others.
On the other hand, as far as relating to them on a human level outside these halachik factors, it is clear that they were treated like anyone else , all the laws against harming or offending people applied equally towards them, and no stigma whatsoever was applied to them.
Whether today’s many categories of genders recognized in many circles can fit into the halachically recognized genders or not, it seems clear from the halachik treatment of these already recognized minority genders that even if they could, one can expect little wholesale halachik flexibility for them- they would be treated as a normal part of society with the kindness that all in society deserve, but it would have little bearing on their halachik status.
This would be assessed purely on halachic grounds, albeit hopefully applying the golden rules of כח דהתירא עדיף (the power to permit is greater) and דרכיה דרכי נועם (her ways are the way of pleasantness) to make life as bearable as possible for them.
It goes without saying however, that if there are issues of either primary or secondary depression and other mental illnesses with the potential to be life threatening, which unfortunately seem to be very common in the transsexual community (whether this is innate or a result of how they are treated is not relevant for this purpose) , all the rules of pikuach nefesh would be applied.
There is much more to discuss on this, and many more relevant sugyos to learn, but for an interesting suggestion regarding the connection between the androgynous and transgender, see Minchas Osher where Rav Weiss deals with the fascinating question of someone whose father “transitioned” to being a female, and changed his name from “Ronny” to “Ronit”.
The question is how he should be called in his kesuba (marriage document)-” ben roni” or “ben ronit.”
It is complex, and I dont want to act as a spoiler, but will try paste a picture of the teshuva when I am home bli neder!
In this Daf, we are told that the Amora Shmuel’s father, also a great authority, would not allow his unmarried daughters to sleep together on the same bed.
The Gemara discusses what his concern was.
First , it suggests that he supports the view of Rav Huna that women who have sexual contact with each other ( נשים המסוללות זו בזו ) are not permitted to marry a kohain (in fact specifically a kohain gadol according to Rashi.)
It could thus be that he was worried that if they sleep in the same bed, they might come to sexual contact, which would cut out their chances of marrying one if they so desired.
It should be noted that even if they were not permitted to marry a kohain or a kohain gadol, that would not necessarily mean they did something wrong – a kohain gadol can only marry a virgin, which excludes a widow who certainly has done nothing wrong, and a kohain cannot marry a divorcee, who has also done nothing wrong .
The Gemara rejects this suggestion and asserts that he does not necessarily agree with this, and he would permit a woman who had slept with another woman to marry even a Kohain Gadol.
The Gemara explains that he simply did not want them to become used to close bodily contact with other people in case they started doing the same with boys while they were unmarried still.
It seems to follow that at least according to THIS sugya, there is no actual Torah prohibition for women to sleep with each other , as if there was, that should have been enough reason for Shmuel’s father to stop his daughters sleeping on the same bed fully clothed.
This fits in well with the fact that there is no specific verse in the Torah prohibiting sexual activity between females, unlike the verses which seem to clearly forbid any such activity between two men.
However, just like we do not make halachic ruling from verses alone, we also do not make halachic rulings from one Gemara in isolation.
To get a bigger picture of this issue, it is necessary to study in depth all other sugyos that relate to this issue and study the rulings of the early poskim on the subject, at a minimum.
A look at the parallel sugya (Yevamos 76a) and the Rambam (Issurei Biah 21/8), shows that this issue is not so simple, but that’s perhaps for another time – this is a daf post after all, not a teshuva or halakhic ruling.
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf . They are not intended as psak halacha .