1) A DISINTEGRATED "MES"
QUESTION: Rebbi Yochanan and Reish Lakish disagree about the status of a Mes that decomposed (27b). Rebbi Yochanan says that the remains are still Metamei. Reish Lakish says that the remains are Tahor. The Gemara suggests that Rebbi Yochanan follows the view of Rebbi Eliezer in Ohalos (2:2), who rules that the ashes of a Mes are Metamei.
The Mishnah in Ohalos which quotes Rebbi Eliezer's opinion concludes by quoting the opinion of the Chachamim that ashes of a Mes are Tahor. Why does Rebbi Yochanan ignore the opinion of the Chachamim and follow the minority opinion of Rebbi Eliezer? Moreover, Rebbi Yochanan here questions Reish Lakish's source for ruling that a disintegrated Mes is Tahor. What is Rebbi Yochanan's question? Reish Lakish's source is obvious: he rules in accordance with the Chachamim who argue with Rebbi Eliezer!
(a) TOSFOS (DH Mes) answers that Rebbi Yochanan understands that even the Chachamim who argue with Rebbi Eliezer agree in principle that a totally disintegrated Mes is Tamei. They nevertheless maintain that ashes of a Mes are Tahor because ashes are even less substantial than a disintegrated corpse and are not considered a Mes at all, but rather like dust of the earth.
(b) Tosfos suggests another answer. Rebbi Yochanan understands that the Chachamim agree that a totally disintegrated Mes is Metamei. They argue with Rebbi Eliezer only with regard to a case in which some of the disintegrated remains of the Mes are missing.
(c) The RAMBAM (Hilchos Tum'as Mes 3:9) rules like Reish Lakish that a disintegrated Mes is Tahor. The KESEF MISHNEH explains that although Rebbi Yochanan understands the argument between the Chachamim and Rebbi Eliezer in one of the two ways mentioned by Tosfos, the Gemara rejects Rebbi Yochanan's understanding of the Chachamim. The Gemara explains that Rebbi Yochanan's ruling follows the opinion of Rebbi Eliezer and not that of the Chachamim. The Halachah therefore follows the view of Reish Lakish, because the Gemara understands that Reish Lakish is consistent with the opinion of the Chachamim who argue with Rebbi Eliezer.
2) THE REASON WHY A "TUMTUM" OR "ANDROGINUS" DO NOT BRING A KORBAN FOR "TUM'AS MIKDASH"
QUESTION: The Gemara quotes Rav who says that if a Tumtum and Androginus see either a white or red discharge (Keri for a man, Dam Nidah for a woman), they are not declared to be definitely Tamei. Accordingly, they are not obligated to bring a Korban Chatas for entering the Beis ha'Mikdash accidentally, and they are not punished for entering intentionally. RASHI (DH Ein Chayavin) explains that a Tumtum or Androginus who saw a discharge is not liable for entering the Beis ha'Mikdash, because he might be Tahor, and thus he cannot bring a Korban to atone for his sin because he might be bringing Chulin into the Azarah, which is prohibited.
The MAHARI SHAPIRA asks that Rashi should have given a more basic reason for why a Tumtum or Androginus cannot bring the Korban. One is obligated to bring a Korban Chatas for unintentionally entering the Beis ha'Mikdash while Tamei only when he initially had a "Yedi'ah ba'Techilah" -- a "previous knowledge" -- that he would be transgressing if he would enter the Beis ha'Mikdash, and then he forgot this fact and entered the Beis ha'Mikdash (see Shevuos 2a). Since a Tumtum and Androginus cannot have previous knowledge that they are Tamei due to a discharge, since no one knows if they are Tamei in such a case, they cannot bring a Korban to atone for entering the Beis ha'Mikdash -- even without the concern that they might be bringing Chulin into the Azarah. Why does Rashi not give this reason?
(a) The MAHARI SHAPIRA answers this question based on the Gemara in Shevuos (19a). The Beraisa there discusses a case in which there are two pathways, one Tamei and one Tahor, and we are unsure which is Tamei and which is Tahor. A person walked along one pathway and then entered the Beis ha'Mikdash. After he underwent a process of Taharah, he walked along the second pathway and entered the Beis ha'Mikdash again. The Beraisa says that he must bring a Korban for entering the Beis ha'Mikdash while Tamei. The Gemara asks, why must he bring a Korban if he never knew for certain that he was Tamei before he entered the Beis ha'Mikdash? Rebbi Yochanan answers that in this case the Torah considers a Safek Yedi'ah to be like a definite Yedi'ah.
The Gemara explains that although Rebbi Yochanan's answer applies to one who enters the Beis ha'Mikdash without definite knowledge that he was Tamei, it does not apply to other transgressions, such as eating Chelev. Rashi understands that the Gemara in Shevuos teaches that a Safek Yedi'ah of Tum'ah normally suffices to be considered a Yedi'ah, and therefore he does not consider the lack of Yedi'ah in the case of the Tumtum or Androginus to be reason to prevent the Tumtum or Androginus from bringing a Korban.
However, this alone does not answer the question. In Shevuos, the person definitely became Tamei on one of his trips to the Beis ha'Mikdash. In the case of the Gemara here, it is possible that the Tumtum or Androginus might not be Tamei at all!
The Mahari Shapira explains that although another prerequisite for bringing a Chatas is that one must have a "Yedi'ah ba'Sof" -- "knowledge at the end" -- that he has transgressed a prohibition, Rashi understands that just as the Torah makes an exception and allows a Safek Yedi'ah to suffice for Yedi'ah ba'Techilah in the case of Tum'as Mikdash, it also allows a Safek Yedi'ah to suffice for a Yedi'ah ba'Sof. (See Mahari Shapira's explanation of how Rashi derives this from the Gemara in Kerisus 19a.) This is why Rashi does not say that the reason why a Tumtum and Androginus cannot bring a Korban is that they never had a Yedi'ah ba'Techilah or a Yedi'ah ba'Sof.
(b) The MEI NIDAH learns Rashi differently. He asks why Rashi needs to give the reason of "Chulin in the Azarah," when the very next part of the Beraisa says that even when the Tumtum sees both colors of discharge at the same time he is not liable for entering the Beis ha'Mikdash while Tamei, because of a Gezeiras ha'Kasuv (see following Insight). If there is a Gezeiras ha'Kasuv, then why does Rashi need to give any reason at all?
He explains that Rashi gives this reason for why the Tumtum cannot bring a Korban because he wants to include a case in which someone else touched the discharge of the Tumtum or Androginus and then walked into the Beis ha'Mikdash. Since the discharge is Tamei only mi'Safek, that person would also not bring a Korban, because he might be bringing Chulin into the Azarah. (Y. MONTROSE)
3) IS AN "ANDROGINUS" A THIRD GENDER OF HUMAN BEING?
OPINIONS: The Gemara quotes Rav who says that if a Tumtum and Androginus see either a white or red discharge (Keri for a man, Dam Nidah for a woman), they are not declared to be definitely Tamei. Accordingly, they are not obligated to bring a Korban Chatas for entering the Beis ha'Mikdash accidentally, and they are not punished for entering intentionally. Moreover, we do not burn items of Terumah that they touched. However, if a Tumtum or Androginus saw both red and white discharges, then we do burn Terumah that they touched, but we still do not punish them for entering the Beis ha'Mikdash while Tamei. This is derived from the verse, "mi'Zachar Ad Nekevah Tishaleichu" -- "from a male to a female you shall send away" (Bamidbar 5:3), which teaches that only a person who is definitely male or definitely female must be sent away, but not a Tumtum or Androginus.
A Tumtum is considered neither a definite male nor a definite female, because his gender is unknown, as it is hidden. Why, though, is an Androginus -- a person with both male and female reproductive organs -- not considered a definite male or a definite female? There is an argument among the Rishonim about whether an Androginus is considered a doubtful male or female, or whether an Androginus is a "Biryah Bifnei Atzmo" -- "a creation unto itself," as Rebbi Yosi describes an Androginus in Bikurim (4:5). According to the second opinion, is an Androginus a third gender of human being?
(a) The RITVA quotes RASHI, TOSFOS (Yevamos 83a, DH Biryah), and other BA'ALEI TOSFOS who explain that even the second opinion -- that an Androginus is a Biryah Bifnei Atzmo -- agrees that an Androginus is either a male or female; we simply do not know the Halachic status of his gender. Why, then, is a Tumtum called a Safek while an Androginus is called a Biryah Bifnei Atzmo? A Tumtum is called a Safek because it is possible to identify his gender through surgical means. An Androginus is not a solvable Safek, though, but rather a Safek in Halachah. Therefore, he is called a Biryah Bifnei Atzmo.
The Ritva adds that the Gemara here seems to support this opinion, but he does not explain how the Gemara supports this opinion. Apparently, the Ritva means as follows. The Gemara concludes that only a person who is definitely male or definitely female is included in the prohibition against entering the Beis ha'Mikdash while Tamei. If the Gemara maintains that an Androginus is a Biryah Bifnei Atzmah, then the term "definitely" is superfluous; since the Androginus is a third gender, it would suffice to say that "only a male or female" is included in the prohibition.
The Ritva cites a similar proof from the Gemara in Chulin (84b). Rebbi Yosi there says that one should not slaughter a Koy on Yom Tov because it might be classified as a Chayah that needs Kisuy ha'Dam, but one may not do Kisuy ha'Dam on Yom Tov because it might be a Behemah that does not require Kisuy. Earlier in Chulin (80a), it is apparent that Rebbi Yosi maintains that a Koy is a Biryah Bifnei Atzmah. It is evident from there that one can maintain that a certain creature is a Biryah Bifnei Atzmah and still maintain that the creature in reality is either a Behemah or a Chayah, and there is simply a doubt about its true identity.
(b) The RAMBAN and RAMAH maintain that an Androginus is an independent gender, as implied by the literal meaning of the words "Biryah Bifnei Atzmo." They prove this from the Gemara in Bechoros (42a-b) that says that the Tana Kama maintains that a Tumtum animal that is a firstborn is considered Kadosh mi'Safek, while Rebbi Shimon ben Yehudah says that it is a Biryah and is not Kadosh. The Gemara counters that everyone agrees that a Tumtum is not a Biryah, but rather either a male or a female.
The Ramban and Ramah prove from there that when something is labeled as a Biryah Bifnei Atzmah, this means that it is definitely not a male or a female, but rather it is literally a Biryah Bifnei Atzmah.
How do they answer the proofs of the Ritva? They understand that although the Gemara here is quoting Rav who maintains that an Androginus is a Biryah Bifnei Atzmah like the aforementioned opinion of Rebbi Yosi (according to the text of the VILNA GA'ON in Bikurim 4:5), Rav's statement here was said in accordance with the opinion of the Chachamim who maintain that an Androginus is a Halachic Safek and is either a male or a female.
The Gemara in Chulin that discusses a Koy is not a proof for the Ritva for a different reason. The Torah clearly gives the Koy -- which would appear to be a Chayah -- the status of a Behemah with regard to a number of Halachos, such as the prohibition against eating its Chelev (see Yoma 74a). This, however, creates a doubt about what the Halachic status of a Koy is with regard to Kisuy ha'Dam. The Gemara there does not mean that in reality it might be a Behemah or a Chayah. (Y. MONTROSE)