Abstract
Muslim jurists have issued several fatwas (Islamic legal opinions) permitting gender-confirming surgery (GCS) for various groups of intersex and/or transgender people. However, these fatwas have been critiqued for conceiving of intersex and transgender individuals as diseased people who need treatment for an illness. By closely examining the legal-hermeneutical arguments behind four widely cited fatwas on GCS—the fatwas of the Islamic Fiqh Council of the Muslim World League, the National Council of Islamic Religious Affairs, Shaykh Ṭanṭāwī, and Ayatollah Khomeini—this article argues that although the objection to the medicalization of the recipients of GCS in such fatwas is mostly correct, it is not always accurate, as it is not the case in Khomeini’s fatwa. The present study, based on the legal-hermeneutical reasoning established in modern Shiʿi juristic scholarship, proposes a discursive space within Khomeini’s fatwa that suggests that intersex and transgender individuals are not people who suffer from physical or mental illness, although they should be permitted to undergo GCS if they wish.
One sunny afternoon in May 2018 I was invited to participate in a research group meeting on spiritual care for transgender people, which took place at the beautiful Reed Hall House at the University of Exeter. Experts with different backgrounds, knowledge, and experiences, including health care practitioners, scholars of religion and gender studies, spiritual health care chaplains, National Health Service (NHS) professionals, and, more important, transgender individuals, participated in that event. The meeting was part of an NHS project, “Modelling Transgender Spiritual Care: Spiritual Care for People Transitioning Gender,” run by Susannah Cornwall in partnership with the West of England NHS Specialist Gender Identity Clinic.1 The aim of the project was to explore whether transgender people have any specific spiritual or religious needs that might necessitate a different or more intensive form of spiritual or religious care than other patients might receive. The first important point that we discussed during the meeting was the concept of “spiritual care.” Since this implies taking care of individuals who suffer from mental illness or disorders, we were wondering whether the NHS medical policy and practice in the United Kingdom considers intersex and transgender people who undergo gender-confirming surgery (GCS) mentally ill or have a disorder that needs mental and/or physical treatment.2 Some of the participants wondered if there were no better terms to refer to this service, which often seems to be a necessary one for transgender and intersex people during GCS transition. Unfortunately, the result of our discussion suggested that because other terms such as spiritual needs or spiritual demands are not better substitutes, there is no choice but to apply the term spiritual care, albeit with awareness of the sensitivity of this subject for transgender and intersex people.
However, something we did not discuss during the meeting was that two issues around this subject should be carefully distinguished from each other. The first is whether individuals, including transgender and intersex people, who wish to undergo GCS are believed to be sick or to have an identity disorder and might therefore need treatment. Until the middle of the last century physicians and psychologists would traditionally consider intersex and transgender people to be suffering from physical or mental illness (Ettner 2020). This view, although less prevalent, still exists among some scholars, psychologists, psychiatrists, and medical doctors. This approach receives an even stronger voice based on medical laws of countries where one may access medical and spiritual or mental care (particularly if the care is subsidized by the states and health insurance companies) only if one is thought to be suffering from illness.3 This approach might be justified by noting that medical resources are limited and therefore should only be given to individuals who are really in need and whose lives otherwise will be in danger.
The second issue relates to the GCS itself as medical technology. In this case, although one may not remark individuals who wish to undergo GCS to be physically or mentally sick, they will inevitably be regarded as patients by medical doctors, psychologists, and psychiatrists as soon as they decide to undergo GCS and request such a transition. This is because GCS, by definition, is in fact a medical procedure or treatment, and a person who demands this treatment is legally deemed a patient. So as soon as a person decides to undergo this surgery, the person deserves treatment and has the right to receive it and to have access to physical and mental health care to help them manage the transition process. Based on this possibility, transgender and intersex people are not deemed to be diseased people who need treatment. However, if such people decide to undergo GCS, since it is a medical process, they inevitably need physical health care as well as often spiritual or psychological care, and they have the right to receive it as GCS itself is considered medical treatment. Bearing this in mind it can be acceptable to use the term medical care or spiritual care for transgender and intersex people who undergo GCS.
The questions on relationships between intersex and transgender people, GCS, and mental or physical illness brought my attention to the timely nature of this debate. I began to reflect on GCS from Muslim legal points of view and to examine whether Muslim legal scholars link GCS with illness. A review of Muslim jurists’ attitudes toward GCS demonstrates that they often conceive of GCS as a sinful procedure and thus that Islam should prohibit it (al-Jīzānī 2006; al-Qaraḍāwī 1980; al-Tabrīzī 2000–2001). However, a number of jurists have issued fatwas permitting GCS for some groups of intersex and/or transgender people. These fatwas have been criticized for making a nexus between GCS and illness. Thus such fatwas conceive of intersex and transgender individuals who seek GCS to be diseased people who need treatment for an illness (Najmabadi 2014; Skovgaard-Petersen 1995). In this study I will closely examine four such fatwas on GCS that are frequently cited by activists and academics in the West: the fatwas of the Islamic Fiqh Council of the Muslim World League, the National Council of Islamic Religious Affairs (NCIRA), Shaykh Ṭanṭāwī (mufti of the Arab Republic of Egypt and Shaykh of al-Azhar 1996–2010), and Ayatollah Ruhollah Khomeini (a grand Shiʿi jurist and leader of the 1979 Iranian Revolution).4 I shall argue that although objection to the medicalization of the recipients of GCS by the Islamic fatwas is mostly correct, it is not always accurate, as medicalization is not the case in Khomeini’s fatwa. Based on the legal-hermeneutical arguments established in Shiʿi ijtihād, I propose a discursive space within Khomeini’s fatwa that suggests that intersex and transgender individuals are not people who suffer from physical or mental illness, although they should be permitted to undergo GCS if they wish. Before advancing the debate, it is useful to briefly elaborate some relevant technical concepts.
Clarification of Concepts: Transsexual, Transgender, Intersex, and Gender-Confirming Surgery
Since the language of this issue is constantly and rapidly changing, I will briefly discuss what I mean by transsexual, transgender, intersex, and gender-confirming surgery in this article.
The term transsexual dates back to the late nineteenth-century medical discourse referring to people whose gender identities do not correspond to the sex they were assigned at birth (Bettcher 2016; Green 2020; King 1999). These individuals might seek medical intervention to alter their bodies partly or completely.5 However, in the 1990s the term transgender emerged and soon, arguably, functioned as an umbrella term to refer to various groups of individuals whose gender identity is different from the gender they were assigned at birth as well as many whose gender identity defies the gender binary of “male” and “female” (Bettcher 2014; Green 2004; Lev 2014).6 Genny Beemyn and Susan Rankin (2011: 6) write that the term transgender describes “all individuals whose gender histories cannot be described as simply male or female, even if they now identify and express themselves as strictly female or male.”
Regarding the intersex issue, there are various disputes over the categorization and identification of intersex people (Chase 1998; Dreger and Herndon 2009; Holmes 2009). According to Sam Winter et al. (2016), intersex individuals are categorized as people who were born with some atypical biological sex characteristics, such as genitals, chromosome patterns, and gonads, that do not correspond to the normative binary concepts of female and male.
Traditional Muslim scholars identify the concept of “intersex” as khunthā and mamsūḥ. Based on this scholarship, a khunthā is a person who possesses both or ambiguous male and female sex organs or genitals. Muslim jurists have distinguished between two types of khunthā (al-Khūʾī 2006: 113; al-Sarakhsī 1993, 30:91–92).7 The first group of khunthā includes individuals identified as al-khunthā ġayr al-mushkil (determinate/unambiguous intersex). According to these jurists, this first group has a “true gender or sex” as male or female, which can be determined through physical signs, before or after puberty.8 The second group of khunthā includes people whose physical features, as these jurists hold, cannot be distinguished within the gender binary as male or female, before or after puberty. This second group is called al-khunthā al-mushkil (indeterminate intersex). A mamsūḥ is a person who has neither male nor female genitals (al-Ḥusaynī 1995–96, 1:38). While most later Shiʿi scholars called this group mamsūḥ (ambiguous) people, classical jurists such as Muḥammad b. Aḥmad Ibn Idrīs al-Ḥillī (1990–91, 3:277) categorized these people as khunthā mushkil. In Sunni scholarship, to my knowledge, the term mamsūḥ is not used at all, and this group is always classified among khunthā people (al-Sarakhsī 1993, 30:92; al-Qazwīnī al-Rāfiʿī 1997, 6:532).
Finally, gender-confirming surgery (sometimes gender-affirming surgery or formerly sex/gender-reassignment surgery) refers to medical alterations that enable intersex and transgender people to find a biological sex and physical characteristics more consistent with their gender identity (Knudson 2020).
Although the issues concerning intersex and transgenderism, in general, and GCS, in particular, have been widely debated at academic, activist, and clinical levels in the West, there is as yet no agreement on the “medical condition,” if any, of these individuals. Transgenderism and intersexuality were classified as gender identity disorders (GID) in the International Classification of Diseases (ICD) until 2016 (ICD-10 2016). This document in its new edition (ICD-11 2018) has recategorized “transsexualism” and “gender identity disorder of children” as “gender incongruence of adolescence and adulthood” and “gender incongruence of childhood,” respectively. Under this classification, “gender incongruence” is no longer considered a mental disorder. Instead, it is regarded as a condition associated with sexual health.
The American Psychiatric Association also categorizes this issue as GID, starting with its annual report of 2011–12 (Byne et al. 2012). Moreover, the American Psychological Association (n.d.) notes: “‘Intersex’ was originally a medical term that was later embraced by some intersex persons. Many experts and persons with intersex conditions have recently recommended adopting the term ‘disorders of sex development’ (DSD). They feel that this term is more accurate and less stigmatizing than the term ‘intersex.’” Unlike the APA, several scholars (Fausto-Sterling 2000: 36–39; Kessler 1998: chap. 2) believe that DSD refers to the classical understanding of intersex people as hermaphrodites who suffer from “abnormal embryonic development.” Therefore intersex people and intersex activists mostly prefer the term intersex over the concept of “disorders of sex development.” It seems that, in their view, the concept of intersex is less pathologizing and can be applied to these people more accurately.9
More recently, the American Psychiatric Association classed transgenderism and intersex issues as “gender dysphoria” (Parekh 2016).10 Opposing the military service ban for transgender people in the United States, the American Psychiatric Association (2017) then announced that transgender individuals had no “mental disorder.” As indicated, the term gender incongruence currently is used in ICD-11 to lessen the pathological implication of the language that refers to transgender and intersex health while increasing intersex and transgender individuals’ access to health care (Knudson 2020).
GCS and Islamic Legal Approaches
GCS in its modern form has been performed since the mid-twentieth century. Although GCS is considered a great achievement for having a positive effect on individuals who wish to undergo this transition, it has resulted in challenges for some religions, including Islam. Muslim jurists have also been presented with numerous questions as the demand for GCS has grown among transgender and intersex people in various Muslim societies, such as Egypt and Iran. The jurists have been asked in particular to issue fatwas regarding the (im)permissibility of this surgery in Islam in the first place. In response to such queries and demands, Muslim scholars often believed that GCS should be regarded as sinful and thus prohibited (haram) in Islam (al-Jīzānī 2006; al-Qaraḍāwī 1980; al-Tabrīzī 2000–2001).11 On the other hand, several other scholars, such as Khomeini in Iran and Ṭanṭāwī in Egypt, issued fatwas legalizing GCS in the late 1980s.
These fatwas were critiqued for being based on sex and/or gender binary logics (Kugle 2010; Najmabadi 2014; Skovgaard-Petersen 1995; Veneuse 2010). There were also objections to the fatwas for considering intersex and transgender people as having gender identity disorders and a mental or physical illness (Najmabadi 2014; Skovgaard-Petersen 1995). Elsewhere I have discussed the first objection and demonstrated that although some of these fatwas, such as Ṭanṭāwī’s, were vague and clearly built on sex and/or gender binary logics, others, such as Khomeini’s, were issued on grounds that may allow for a discussion on transgender and intersex Muslims as a third sex and/or gender (Alipour 2017b). In this article I study four fatwas issued on GCS and examine the legal-hermeneutical arguments behind the fatwas to see to what extent these fatwas conceive of transgender and intersex individuals as people with physical or mental illness who need treatment.
Islamic Legal Hermeneutics
Before examining the fatwas I want to briefly address the legal-hermeneutical methodology applied by Muslim jurists to derive Islamic legal rulings (al-aḥkām al-sharʿiyya, sing. al-ḥukm al-sharʿī) on any given case, including that of GCS. This methodology is often called ijtihād (see Calder 1989; Vikør 2006). Legal theory (uṣūl al-fiqh) is a field of knowledge that mainly explores the process of ijtihād and identifies the valid sources it draws on (Hallaq 2011).
According to Sunni legal theory (Hallaq 2011; Vikør 2006) there are four major hierarchical sources that jurists need to practice ijtihād: the Qurʾan, sunna (sayings, deeds, and endorsements of the Prophet Muḥammad), ijmāʿ (consensus), and qiyās (legal analogy).12 Thus, concerning the legal ruling on a certain case, jurists are first required to investigate it in the Qurʾan and determine whether it is addressed there. If the Qurʾan explicitly and decisively refers to the law on the case and there are no valid contradictory indications in the sunna, then the Qurʾanic ruling should be regarded as the established one and thus should be followed. Otherwise a jurist is required to study the legal ruling in the sunna. If the legal ruling on a case cannot be found either in the Qurʾan or in the sunna, then jurists need to investigate it using ijmāʿ (consensus) and qiyās (legal analogy).
Modern Shiʿi ijtihād, on the other hand, is essentially based on two successive levels (al-Ṣadr 1996, 5:9–11). On the first level a Shiʿi jurist should try to derive actual Sharʿī legal rulings (al-aḥkām al-sharʿiyya al-wāqiʿiyya) through the primary sources of arguments called ijtihādic arguments (al-adilla al-ijtihādiyya), namely, the Qurʾan, sunna (sayings, deeds, and endorsements not only of Muḥammad but also of his daughter Fāṭima and the Twelve Imams), ijmāʿ, and ʿaql (reason). Qiyās in Shiʿi ijtihād is not validated. This level applies when a given case is addressed by one of the above four sources whereby Shiʿi jurists might be able to derive the actual legal ruling on the given case. However, if the legal ruling on this case cannot be derived from the ijtihādic arguments, then the jurist should apply the second level of ijtihād: tackling the issue through general principles called procedural principles (al-uṣūl al-ʿamaliyya) or fiqāhatī (juristic) arguments (al-adilla al-fiqāhatiyya). The goal of ijtihād at this stage is to determine Muslim individuals’ position on a topic and to explore how they should address a legal issue in practice. Therefore a legal ruling derived from procedural principles on this level implies not an actual legal ruling (al-ḥukm al-wāqiʿī) but an apparent legal ruling in practice (al-ḥukm al-ẓāhirī al-ʿamalī). In fact, the need for such principles emerges when a jurist, after searching and examining all the primary sources, holds that an actual legal ruling on a topic is still doubtful (maʿ al-shakk). Thus legal rulings derived from such principles may be applied only in cases where no actual legal rulings on those cases can be found (al-Anṣārī 1997–98, 2:10–11). One such principle in modern Shiʿi scholarship is called “the priority of sharīʿa exemption” (aṣālat al-barā’a al-sharʿiyya). Given this priority, if there is no clearly received evidence in Islamic sources (including unequivocal statements in scriptures or rational arguments) to forbid a topic, it would be considered permissible in practice. Based on this principle, one can conclude that, as long as there is no received evidence against a certain case, it should be remarked as permissible.
Although fiqāhatī arguments were established in Shiʿi legal theory much later than ijtihādic arguments, they carry equal weight in recent Imāmī legal theory. These jurists have come to realize that an increasing number of complex modern issues need to be explored using an Islamic lens. However, no scriptural texts from the Qurʾan or sunna can be applied to most of these issues. Moreover, many such cases are not subject to rational arguments. Therefore the fiqāhatī principles are useful, as they provide Muslims with solutions to tackle such modern issues in their daily lives.
In addition to the ijtihādic arguments and procedural principles, there are other rules, called legal maxims (al-qawāʿid al-fiqhiyya), that both Sunni and Shiʿi legal schools often use to derive legal rulings on a given case. In fact, the process of ijtihād would not be complete if jurists did not seek the applicable legal maxims in their juristic endeavors. Legal maxims consist of the general principles of fiqh that can comprehensively or predominantly be applied to all their related specifics (Kamali 2008; Laldin 2014; Makārim al-Shīrāzī 1991–92). These maxims usually take the form of very short statements expressing some principal aims of Islamic law (Kamali 2006: 80; 2008: 141–61). They are typically derived from the Qurʾan or sunna and have been expanded by jurists in different periods. There are many such legal maxims, some of which I shall describe later, where relevant.
Before proceeding, I want to briefly address the maxim of necessity (qāʿidat al-iḍṭirār), in which some of the following fatwas are partly grounded. The maxim of necessity—or, in its complete articulation, “necessities permit prohibited things” (al-ḍarūrāt tubīḥ al-maḥẓūrāt)—implies that urgent matters render impermissible or unlawful acts permissible or lawful (Muḥaqqiq Dāmād 1985–86, 4:123–24; Muslehuddin 1973). For example, drinking wine is prohibited according to various Islamic legal schools. However, given the maxim of necessity, it is permissible to drink wine when one is trapped in a situation in which there is no alternative. Another clear example of the application of this maxim is the case of illness. For instance, fasting during Ramadan is obligatory for every adult Muslim unless it would cause harm.
Legal-Hermeneutical Examination of Four Fatwas on GCS
Islamic Fiqh Council of the Muslim World League
At the eleventh session of the Islamic Fiqh Council of the Muslim World League (held in Saudi Arabia February 19–26, 1989), participants discussed GCS and issued a fatwa on this subject (Islamic Fiqh Council of the Muslim World League 1989). A summary of the fatwa states:
The Islamic Fiqh Council of the Muslim World League has looked into the matter of changing a male into a female and vice versa, and, after research and discussion amongst its members, the following has been decided:
Firstly: It is not permissible for either a man whose male organs are fully formed or a woman whose female organs are fully formed to change into the other gender. The attempt to do so is a crime, the perpetrator of which deserves to be punished for changing Allah’s creation. Allah (Subhanuhu) has forbidden this changing, . . . when He informs us of what Satan said (in meaning),
. . . and indeed I will order them to change the nature created by Allah . . . [Al-Nisaʾ 4:119]
Furthermore, it is stated in Sahih Muslim, on the authority of Ibn Masʿoud, that, “Allah has cursed the tattooists and those who get tattoos, the eyebrow pluckers and those who have their eyebrows plucked, and those who file a space between the front teeth and the incisors for beautification purposes—those who change the creation of Allah (Mighty & Majestic).” Then he said, “Should I not curse those whom Allah’s Messenger cursed, when it is in the Book of Allah (Mighty & Majestic), meaning His Saying (in meaning), And whatsoever the Messenger (Muhammad, saws) gives you, take it, and whatsoever he forbids you, abstain (from it) [Al-Hashr 59:7]?”
Secondly: As for those whose organs combine characteristics of women and men, the predominant nature of their situation should be considered. Whoever is predominantly male, it would be permissible to treat him medically with that which would remove the disparity in his masculinity, and whoever exhibits predominantly female characteristics, it would be permissible to treat her medically with that which would remove the disparity in her femininity, whether that be treatment with surgery or hormones, because that is an illness and the intention of treatment is to be cured, not to change the creation of Allah (Mighty & Majestic).
The fatwa does not permit transgender people or anyone who has complete sex organs to undergo treatment or surgery. In fact, GCS should be categorically impermissible in Islam according to this fatwa. Following the Sunni legal tradition, the fatwa argues for the prohibition of GCS first by the Qurʾan, namely, Q. 4:119. According to this verse God has created everything as it is, including humans, and God does not make mistakes. Therefore what persons are, in fact, should be considered their God-given natures, and they must go back to God as they were born. This is why God commands us not to change His creation; otherwise Satan will take shape instead of Allah and we will be acting against God’s intrinsic nature. This fatwa considers the aforementioned verse as decisive textual evidence that implies that by performing GCS (whether genital or chest or breast surgeries) God’s creation is interfered with, a creation no one in existence has any right to alter.
Furthermore, the fatwa then argues for the prohibition of GCS by addressing a sunna or hadith (report) transmitted from the Prophet by Ibn Masʿūd, a companion of Muḥammad. In line with this report, the Prophet, referring to the above verse of the Qurʾan, states that God “has cursed the tattooists and those who get tattoos, the eyebrow pluckers and those who have their eyebrows plucked, and those who file a space between the front teeth and the incisors for beautification purposes.” The reason that these groups of people have been cursed by God, according to Ibn Masʿūd’s report, is verse 4:119, which implies that they changed God’s creation by practicing these deeds. Finally, Ibn Masʿūd states that he should also curse these groups of people as the messenger of God (the Prophet) has cursed them.
Expanding the implication of the aforementioned verse of the Qurʾan and the sunna to GCS, the Islamic Fiqh Council concludes that GCS is impermissible in Islam for those who have complete sex organs (i.e., seemingly transgender people), and thus any attempt by these individuals to perform GCS is deemed an intervention in God’s creation, which is prohibited by God and cursed by the Prophet. Therefore, the council concludes, the perpetration of GCS by those who have complete sex organs, including transgender people, should be considered an offense that deserves punishment.
Nevertheless, based on this fatwa, if a person’s condition, according to Muslim jurists, classifies them as a determinate intersex person (al-khunthā ġayr al-mushkil), namely, an individual who possesses signs of both female and male sexes, medical treatment (through GCS or hormone therapy) would be permissible. However, every single case must be examined to explore whether the male or female sex is dominant to medically treat the patient accordingly. The fatwa considers people who are determinate intersex persons ill individuals who require treatment to remove the “disparity” in their femininity or masculinity. In fact, GCS in such cases is permissible because the purpose of GCS in these cases is to cure people who suffer from “disparity,” not to alter God’s creation. However, the fatwa neither mentions the situation of an indeterminate intersex person (al-khunthā al-mushkil) nor whether they are permitted to undergo hormone therapy or surgery.
To better appreciate the legal argument behind the fatwa on the permissibility of GCS for determinate intersex people, it is important to bear in mind the legal maxim of necessity. Regarding this maxim, urgent matters render impermissible or unlawful deeds permissible or lawful. This is to say that although GCS, in line with the Islamic Fiqh Council, is not permissible in Islam, if a Muslim individual (say, a determinate intersex person) is ill and urgently needs treatment (say, must undergo GCS), the treatment must be provided to the person, and the person must accept the treatment. Thus this necessity permits determinate intersex individuals to undergo otherwise prohibited GCS.
Malaysia’s National Council of Islamic Religious Affairs
In Malaysia the National Council of Islamic Religious Affairs (NCIRA) is in charge of sharīʿa law in the country. The NCIRA considers this surgery prohibited for transgender people as of the 1983 fatwa (Shogo 2017).13 NCIRA ijtihādic reasoning for the prohibition of GCS in this fatwa is Q. 4:119, discussed in the previous fatwa. The council, however, issued another fatwa in relation to khunthā people in 2006 (Zainuddin and Abdullah Mahdy 2017), in which NCIRA relied on biological terms to distinguish different types of intersex people. The fatwa, according to Ani Amelia Zainuddin and Zaleha Abdullah Mahdy (358), has articulated the situation of intersex people as follows:
For those with 46,XX CAH reared male, gender reassignment surgery to get back to the previous gender that is female is permitted in Islam because it can be treated by hormone treatment and surgery.
For those with 46,XY AIS reared female, getting back to the male gender through surgery or hormone treatment is quite difficult. If the patient intends to undergo surgery, it is permitted, provided that the surgery does not harm the patient psychologically or biologically.
For those with 46,XY AIS reared female, but diagnosed only after the person has already grown up, the person can continue a normal life and the gender is recognized from his/her [body build] and the [appearance] of the genitalia. Surgery to remove the testes (if any) is permissible to prevent the risk of cancer. The marriage of a man with a female spouse who suffers from 46,XY AIS does not need to be dissolved.
Medical specialists should provide explanation and advice to Muslim individuals who are affected by CAH and AIS and their parents to undergo treatment in a way that avoids any difficulties with religious regulations.
In line with this fatwa, it is permissible for intersex individuals with 46,XX congenital adrenal hyperplasia, who are brought up as male, to have GCS and hormone therapy to bring them back to their chromosomal gender, which is female. Moreover, people with 46,XY androgen insensitivity syndrome raised as female are also permitted to undergo GCS or hormone treatment with the stipulation that the surgery “does not harm the patient psychologically or biologically.” However, for persons with 46,XY androgen insensitivity syndrome raised as “female, but diagnosed only after the person has already grown up, the person can continue a normal life and the gender is recognized from his/her [body build] and the [appearance] of the genitalia. Surgery to remove the testes (if any) is permissible to prevent the risk of cancer” (Zainuddin and Abdullah Mahdy 2017: 358).
Although the fatwa does not explain its legal reasoning for the permissibility of GCS for these groups of intersex people, it is not difficult to find the logic behind the NCIRA’s decision. Intersex people, as the fatwa postulates, are classed as groups with some medical conditions that require treatment. GCS is considered a unique medical cure for intersex people. Thus intersex individuals need GCS, according to the fatwa’s logic. Given the maxim of necessity, it can be inferred that it should be permissible for intersex people to undergo GCS.
Ṭanṭāwī’s Fatwa
In 1988, responding to a query on a transgender woman named Sally Abd Allah, Muḥammad Sayyid Ṭanṭāwī, shaykh of al-Azhar University, issued a fatwa allowing some cases of GCS.14 Since I have discussed the fatwa elsewhere (Alipour 2017a), I will not review the whole fatwa here. However, I include a summary:
As for the condemnation of those who by word and deed resemble women, it must be confined to one who does it deliberately . . . , while one who is like this out of a natural disposition must be ordered to abandon it, even if this can only be achieved step by step. Should he then not comply, but persist [in his manners], the blame shall include him, as well—especially if he displays any pleasure in doing so. The person who is by nature a hermaphrodite [al-mukhannath al-khalqī] is not to be blamed. This is based on [the consideration that] if he is not capable of abandoning the female, swinging his hips in walking and speaking in a feminine way, after having been subjected to treatment against it, [he is at least willing to accept that] it is still possible for him to abandon it, if only gradually. But if he gives up the cure with no good excuse, then he deserves blame.
Al-Ṭabarī took it as an example that the Prophet . . . did not forbid the hermaphrodite from entering the women’s quarters until he heard him giving a description of the women in great detail. Then he prohibited it. This proves that no blame is on the hermaphrodite for simply being created that way.
That being so, the rulings derived from these and other noble ḥadīths on treatment grant permission to perform an operation changing a man into a woman, or vice versa, as long as a reliable doctor concludes that there are innate causes in the body itself, indicating a buried (maṭmūra) female nature, or a covered (maġmūra) male nature, because the operation will disclose these buried or covered organs, thereby curing a corporal disease which cannot be removed, except by this operation.
This is also dealt with in a ḥadīth about cutting a vein, which is related through Jābir: “The Messenger of God sent a physician to Abū b. Kacb. The physician cut a vein and burned it.” This ḥadīth is related by Aḥmad [b. Ḥanbal] and Muslim. What supports this view is what al-Qastallānī and al-ʿAsqalānī say in their commentaries on it: “This means that it is incumbent upon the hermaphrodite to remove the symptoms of femininity . . . ”
To sum up: It is permissible to perform the [GCS] operation in order to reveal what was hidden of male or female organs. Indeed, it is obligatory to do so on the grounds that it must be considered a treatment, when a trustworthy doctor advises it. It is, however, not permissible to do it at the mere wish to change sex from woman to man, or vice versa.15
Unlike the two previous fatwas, Ṭanṭāwī’s legal opinion apparently deals with GCS for both intersex and transgender people. Given Sunni legal-hermeneutical methodology, he is first required to investigate the legal ruling on GCS for transgender and intersex people in the Qurʾan and sunna, then use the consensus of Muslims, and finally apply legal analogy (qiyās). However, he is already aware that the concepts of transgenderism and intersex identity, as modern phenomena, may not be found directly in the scriptures, namely, the Qurʾan and sunna. Therefore he seems to uphold that the Qurʾanic argument presented against GCS cannot convincingly forbid it in Islam. In fact, according to him, in the aforementioned verse changing the creation of Allah does not refer to physical change. Instead, it refers to changing divine law and Islamic faith.
On the other hand, as the case is controversial among Muslims, there is no consensus concerning GCS. In this way, through his great proficiency in ijtihād as well as his expanded knowledge of Islamic legal theory (uṣūl al-fiqh), Ṭanṭāwī relies on the analogous cases and applies a legal analogy at the final stage. He soon finds cases in the primary legal source of the sunna that might help with the issues of modern transgender and intersex people. There are several reports transmitted from the Prophet that imply the permissibility of surgery for cases such as khunthā (hermaphrodite)16 persons in the belief that these people were ill and in need of treatment. It should be noted that Ṭanṭāwī uses mukhannath to refer to intersex people. Although mukhannath is commonly translated to “effeminate” in Islamic studies, and several Muslim lexicographers describe the mukhannath as a male “who resembles or imitates a woman in the languidness of his limbs or the softness of his voice” (Rowson 1991: 673), the early lexicographer al-Khalīl b. Aḥmad (d. 786) upholds that mukhannath is driven from khunthā, “on the basis of parallel gender ambiguity” (673). It appears that Ṭanṭāwī, concurring with al-Khalīl, has consciously used mukhannath, not khunthā, to apply the expanded scope of mukhannath for placing transgender people among those who for whom it is permissible to undergo GCS in Islam. This is why he classifies those individuals who are “not capable of abandoning the female, swinging [their] hips in walking and speaking in a feminine way” as hermaphrodite by nature (al-mukhnnath al-khalqī).
Let us return to Ṭanṭāwī’s legal arguments on GCS. Relying on a hadith (addressed by al-Ṭabarī), Ṭanṭāwī holds that the Prophet did not forbid the mukhannath people from entering the women’s quarters until he heard them giving a description of the women’s bodies in great detail. He thus concludes that the person who is a mukhannath by nature (al-mukhannath al-Khalqī) is not to be blamed, as they are ill. Ṭanṭāwī, however, excludes from this permission those people who are not mukhannath by nature. As a second step, he provides arguments for the permissibility of GCS as a cure for such people. At this stage, he refers to a hadith transmitted from the Prophet by Usāma b. Sharik, which implies that there is a cure for every disease, including hermaphroditism (Skovgaard-Petersen 1997: 329). He also refers to a hadith recorded by the two major Sunni hadith compilers, Ahmad b. Hanbal and Muslim through Jābir (a companion of Muḥammad). This report conveys that the Prophet sent a physician to a man to cut a vein and cure him by this method. Referring to al-Qastallani’s and al-Asqalani’s comments on this hadith (discussing the hermaphrodite and how to remove the symptoms of femininity), Ṭanṭāwī concludes that GCS should be permissible for hermaphrodite people.
It is fairly convincing to hold that intersex people, in Ṭanṭāwī’s view, should certainly be categorized as khunthā/mukhannath, as they are hermaphrodite by their physical nature. One may then wonder about the place of transgenderism in his fatwa. To answer this point, we must bear in mind that Ṭanṭāwī’s fatwa was a response to a query posited by an identifiably transgender woman named Sally Abd Allah. Thus his fatwa must be related. Ṭanṭāwī does, however, talk only about hermaphrodite or mukhannath. He does so either because he sees the condition of modern transgenderism as similar, or because he believes that the condition is, in essence, part of hermaphroditism. Thus transgender people should be classed as hermaphrodite by their internal nature, a condition that might be referred to as psychological hermaphroditism (al-khunuthā/al-mukhannath al-nafsiyya). To include transgender people in the fatwa, as indicated, Ṭanṭāwī intentionally uses mukhannath instead of khunthā, as the latter refers only to intersex people, while the former most likely implies both intersex and transgender individuals, who, as Ṭanṭāwī explicitly describes, are not “capable of abandoning the female, swinging [their] hips in walking and speaking in a feminine way.”
Based on such understanding, Ṭanṭāwī ultimately issues the fatwa permitting intersex and transgender people to undergo GCS “in order to reveal what was hidden of male or female organs.” Although he does not explicitly address the two concepts of transgenderism and intersexuality in his fatwa, Ṭanṭāwī accepts GCS as treatment for those individuals who feel that they are trapped in the wrong body and want to discover their real sex. In his opinion, through GCS, what may be discovered is one’s real sex, an inward essence (baṭin), which is covered by an outward appearance (ẓāhir). The important point, again, is that the whole process, including the surgery, must be regarded as medical treatment. Given that a surgical operation is the best treatment, or the only cure, surgery must be undergone. Conversely, Ṭanṭāwī emphasizes, it is not permissible to carry out the operation on the whim of the patient, that is, to change sex from one gender to another. In fact, in Ṭanṭāwī’s view, in the case of GCS, transgender and intersex people do not have the freedom of choosing whether to undergo the surgery, as they are believed to be ill and in need of treatment.
One might still wonder whether there is no alternative understanding of Ṭanṭāwī’s fatwa that allows transgender and intersex individuals to undergo GCS even if they are not considered ill. The fatwa, I believe, could be interpreted this way, if Ṭanṭāwī did not explicitly assert that in the case of recommendation from medical doctors the surgery is obligatory for transgender and intersex people, meaning that in such situations the patients have no choice but to undergo GCS. In fact, as noted earlier, Ṭanṭāwī’s fatwa is based on legal analogy (qiyās). Therefore, although modern transgenderism or intersexuality may not be found directly in the scriptures, there are reports transmitted from Muḥammad that imply the permissibility of surgery for analogous cases, such as hermaphrodite or mukhannath, in the belief that these people are ill and need treatment.
Moreover, it appears that Ṭanṭāwī implicitly refers to a widely accepted legal maxim called the maxim of no harm and no retribution (qāʿidat lā ḍarar wa lā ḍirār) in Islamic legal scholarship (al-Shāṭibī al-Ġaranāṭī 1997, 2:20; al-Zaḥīlī 1999: 226). In line with this maxim, Muslims are not allowed to harm themselves; rather, they must take care of their life and health. The harmfulness addressed in this maxim seemingly includes all physical, mental, or economic harms (Makārim al-Shīrāzī 1991–92, 1:55). Therefore individuals diagnosed with an illness must seek cures. Otherwise they would harm themselves, which is forbidden in Islam as per this maxim. Although the previous two fatwas are literally silent on this issue concerning the legal arguments behind them, which connect GCS to illness, these fatwas should principally concur with Ṭanṭāwī’s view on this matter. In other words, given that a surgical operation is the only cure, surgery must be undergone in accordance with the maxim of no harm and no retribution.
Khomeini’s Fatwa
Perhaps the first response to the issue of GCS among Muslim jurists was by Ayatollah Khomeini, in his book Taḥrīr al-Wasīla, in the 1960s.17 Khomeini addressed this issue in a section titled “The Changing of Gender/Sex.” This section includes ten problems. Problem 1 is a fatwa that explicitly discusses the permissibility of GCS for every individual, including transgender and intersex people. Subsequent problems deal with the specific results of a sex change, such as the status of a person’s marriage and kinship following surgery. Let us first take a look at the fatwa itself:
It seems that changing the sex and/or gender [jins] of a male to a female by surgery is not prohibited [ḥarām] [in Islam] and vice versa, and it is also not prohibited for an intersex [khunthā] undergoing it to be attached to one of the sexes and/or genders [female or male]; and does the surgery become obligatory if a woman finds in herself [sensual] desires similar to man’s desires or some evidence of masculinity in herself—or a man finds in himself [sensual] desires similar to the opposite sex or some evidence of femininity in himself? It seems that [in such a case] if a person really belongs to a [determined] sex and/or gender, surgery is not obligatory [wājib], but the person is still eligible to change their sex and/or gender [jinsiyya] into the opposite sex and/or gender. (Khomeini 1967–68, 2:626; my translation)
Interestingly, Khomeini in this fatwa did not categorize individuals who wish to undergo GCS as people with mental or physical illness who need treatment. This point is extremely important when one bears in mind that in the 1960s in most parts of the world, including Europe and North America, either GCS was not legalized or, in cases where permission for GCS was granted, people who wished to undergo it were considered mentally or physically ill or disordered.
Examining the Legal Hermeneutics of Khomeini’s Fatwa
In line with the fatwa, Khomeini explicitly discusses the permissibility of GCS in Islam in an absolute utterance (al-kalām al-muṭlaq) without any restriction. This also can be implicitly concluded from his first sentence, as Khomeini issues the fatwa of the permissibility of GCS generally for every individual who wishes to change their body. In the second and third statements, he specifically distinguishes intersex and transgender persons, both male to female and female to male, as people who are definitely permitted to undergo GCS. Finally, he mentions that this surgery is not mandatory for these groups, which means that the fatwa validates intersex and transgender people’s right to choose to live as they are without undergoing GCS. In other words, GCS, in Khomeini’s legal opinion, is a right (not a duty) that can be performed on individuals’ demand and with their consent.
According to the hermeneutics of the text itself, the fatwa neither explicitly nor implicitly limited the permissibility of GCS in Islam to the recommendation of medical doctors, psychologists, or psychiatrists. In fact, based on this fatwa, an individual who wishes to undergo GCS does not require permission from specialists as a person who suffers from physical or mental illness. Otherwise Khomeini would (or, in fact, must) address it clearly. This is because Muslim jurists, including Khomeini, hold that they are responsible for their fatwas even in the afterlife. They must therefore be cautious and issue the fatwas carefully to avoid confusing or misleading the Muslims who follow them.
Moreover, asking for recommendations from doctors or professionals is not a hidden implication that Khomeini might have forgotten to express or notice. If this were the case, one could infer that in Khomeini’s view there is no nexus between GCS and illness. Thus the fatwa does not perceive transgender and intersex people as physically or mentally ill and therefore in need of treatment. Otherwise, like the authors of the previous fatwas, Khomeini should have regarded GCS as obligatory, owing to the maxim of no harm and no retribution, and not merely permissible.
In addition, one must not forget that this fatwa seems to generally permit GCS for all humans who wish to change their bodies for any reason. Therefore it is naive to assume that Khomeini considered every individual who wished to undergo GCS ill.
Lastly, according to the theology of the opponents of GCS, such as the Islamic Fiqh Council of the Muslim World League, GCS is not permissible in Islam, because God has created everything as it is, including human beings, and God does not make mistakes. Therefore individuals are, in fact, their God-given natures, and they must go back to God as they were born. If GCS is performed, then God’s own creation is interfered with, a creation no one in existence has any right to alter. However, Khomeini seems to believe that the argument of “wrongly interfering in God’s creation” does not apply to GCS. This is because, according to some exegetes of the Qurʾan (Karīmīniyā 2010–11: 124–31), in this verse, changing the creation of Allah refers not to physical change or to GCS but to other issues, such as changing Islam and one’s faith. Therefore the forbidding of change mentioned in the Qurʾan does not apply to gender-confirming surgery. This theological approach, which seems to be supported by Khomeini, is not limited to any medical condition.18
Concurring with this understanding of the fatwa, it appears that current Shiʿi clerics, such as Karīmīniyā, who took the initiative to continue this discussion, do not consider ill individuals who want to undergo GCS. For instance, Karīmīniyā understands transgenderism as a discordance between the gender/sex of soul and body, which is a more neutral concept. And as Najmabadi (2014: 190) explains, “The concept of discordance between soul and body is more benign and less pathologizing—and thus more appealing to many trans persons—than one informed by a psychosexological discourse of GID, especially with the heavily negative load of the term disorder (ikhtilal in Persian) compared with the more neutral weight of discordance (nakhvani).” The analysis of Khomeini’s fatwa could authentically be concluded here if there were no other documents suggesting a different opinion of him on this issue. However, Khomeini issued a second fatwa in the late 1980s, perhaps a year before his death in 1988, permitting GCS in cases where trustworthy doctors recommend it. In the following section, I shall first provide a translation of this later fatwa and then examine the relationships between his two fatwas and the legal-hermeneutical reasoning behind them.
A Dilemma in Khomeini’s Fatwa on GCS and a Legal-Hermeneutical Solution
Khomeini’s second fatwa concerns the demand of a transgender woman called Maryam-Khātūn Mulkārā, whose fascinating story has been discussed elsewhere (Alipour 2017a). In this fatwa Khomeini allows Mulkārā to undergo GCS on a recommendation from trustworthy doctors: “In the Name of God Almighty. Changing the gender and/or sex [taġyīr-i jinsiyyat] [by surgery] is not prohibited in Islam if reliable medical doctors recommend it. Inshā’ Allāh [God willing] you will be safe and hopefully, the people whom you had mentioned might take care of your situation.”19 Given this later fatwa, if we intend to maintain the aforementioned understanding of Khomeini’s earlier fatwa, we then need to provide another interpretation for his explicit remark in this fatwa in which he does suggest that GCS is permissible based on a recommendation from doctors or specialists.
One straightforward explanation for the difference between the two fatwas is perhaps to believe that the latter was issued exclusively for the specific case of Mulkārā, while the former was issued generally as it was not in response to a query. This means the second fatwa should be limited to the case of Mulkārā, because Khomeini issued this permission based on a recommendation from a trustworthy doctor for Mulkārā’s unique situation and condition. Therefore it does not provide grounds for extending this specific fatwa to other cases of GCS.
However, one might disagree with this explanation, particularly, because of the language used in the fatwa. That is, although the fatwa should be related to Mulkārā, Khomeini seems to issue the fatwa generally without limiting it to the case of Mulkārā. Nevertheless, there is another interpretation for Khomeini’s statement on GCS in that it requires the advice of trustworthy doctors. To explain, Khomeini was indeed aware of the significant impacts of GCS on the life of a transgender or intersex person, especially with the knowledge that it is nonreversible. Therefore a transgender or intersex individual, in Khomeini’s view, needs to be sure that the decision to undergo GCS is the right one.20 According to Khomeini’s suggestion, this may happen through consultation with experts such as psychiatrists and medical doctors. This point can also explain Khomeini’s plan of action when issuing the fatwa for Mulkārā. To be more precise, the final step for Khomeini in issuing the fatwa, as I have explained elsewhere (Alipour 2017a: 99), was to consult other scientists and medical doctors.
This is further evidenced in Mulkārā’s report, which states that she had sent two letters to Khomeini to explain her case. But on both occasions Khomeini mistakenly thought that she was a hermaphrodite and so told her to practice Islam as such. This prompted her to meet him in person and explain her situation. Khomeini then consulted scientists, including psychologists, surgeons, and other physicians (Tait 2005). It seems that he wanted to understand the subject/topic clearly, as the Muslim ijtihādic scholarship is not in charge of discussing the customary topics of Islamic legal rulings per se.21 Therefore, to understand a subject/topic of a legal ruling, jurists need to refer to the general understandings from society or specialist understandings in the case of technical subjects, such as Khomeini perceived in this case. Through this dialogue with experts and relying on their professional opinions, he could proceed in his ijtihād and provide such a fatwa on intersex and transgender GCS.
According to this explanation, Khomeini’s second fatwa does not regard intersex and transgender people as having mental or physical disorders, but it considers GCS itself a medical technique and procedure that can be used for every individual, including intersex and transgender people. Therefore, when a person decides to use this medical facility to change their gender or sex, as part of the medical process before and during the surgical transition, they need to visit professionals such as psychiatrists, psychologists, surgeons, and other physicians to discuss their case with them before definitively deciding to undergo GCS. This advice appears to be similar to the policies followed by such organizations as the NHS in the United Kingdom. That is, according to the medical policy of such organizations, people who wish to undergo surgeries such as GCS or other kinds of plastic surgery or liposuction, even where the treatment is not for a disease, still need to consult with specialists beforehand.
This understanding of the fatwa can be affirmed by delving into the legal-hermeneutical arguments behind Khomeini’s fatwa. As I have explained elsewhere (Alipour 2017a), Khomeini’s possible legal-hermeneutical reasoning for this fatwa is as follows. It appears that, in Khomeini’s view, concerning the first level of Shiʿi ijtihādic sources, there is no clear evidence for or against modern GCS or transgenderism or intersex identity in the Qurʾan, sunna, or other primary sources. Moreover, unlike Sunni legal opinion, in Shiʿi ijtihād, legal analogy (qiyās) has not been validated, and thus it cannot be applied to new cases. Hence the legal ruling on GCS is unknown or doubtful (maʿ al-shakk) at this stage of ijtihād. Therefore Khomeini needs to move on to the second level of ijtihād, that is, to investigate possible procedural principles and legal maxims that can be applied to GCS to tackle this problem in practice. At this stage, Khomeini might find various legal maxims or procedural principles to advance this case. It does not seem that all such maxims or principles are relevant to this current study. However, to make the point, it is helpful to examine two major arguments of this kind (a legal maxim and a procedural principle) that Khomeini most likely used to verify the permissibility of GCS.
First is “the maxim of dominance” (aṣālat al-taslīṭ). According to this maxim, everybody has a right to, or control over, their body and property. Shiʿi jurists consider this highly rational, a rule that sharīʿa does not deny. But it is important to know that this right in Islam is limited to all possessions thought rational or reasonable (ʿuqalā’ī) within human or Muslim societies (al-Kharrāzī 1999: 24). If changing the body by surgery is held to be rational, as it is in many modern societies, everybody, based on this rule, may use their right to change their body through surgery. It is not difficult to see that Khomeini partly based his fatwa on this rule. The only prerequisite addressed in this maxim is that the given action should be regarded as rational within human or Muslim communities. It seems that Khomeini, relying on this maxim, held that undergoing GCS is a rational practice that can be chosen by individuals who are in possession of their bodies. Furthermore, GCS is not contingent on anything else, including recommendations of or permission from other professionals expressing that the person who wishes to undergo this surgery is considered diseased.
Second is a procedural principle called “the priority of sharīʿa exemption” (aṣālat al-barā’a al-sharʿiyya) that perhaps Khomeini weighed prior to issuing this fatwa. Following this priority, if there is no clearly received evidence or indicator addressed by Islamic revelatory sources or by reason to forbid a topic, behavior, or action, it would be found permissible in practice. This is because a famous verse of the Qurʾan (17:15) states that Muslims will not be punished without a received message, and a hadith from the Prophet Muḥammad (al-Ṣadūq 1996–97: 417) implies that Muslims are relieved of that which they do not know by clear received indicators. Based on this principle, one can conclude that GCS should be permissible, as there is no indicator against it. Again, the permissibility of GCS is not subject to the precondition of illness of those individuals who wish to undergo it, and thus it is not subject to a recommendation or permission from professionals.
The above discussion arguably illuminates that Khomeini’s fatwa does not believe intersex and transgender people who wish to undergo GCS have physical or mental illness or even gender identity disorder. Therefore there is no need for doctors to confirm that these people have gender identity disorder or physical or mental illness. However, regarding Khomeini’s second fatwa on GCS, since this surgery is a highly important and an irreversible process, it is recommended that one who wishes to undergo it discuss and consult with psychologists, psychiatrists, and medical doctors.
Comparing and Contrasting the Fatwas
The examination of the fatwas presented in this study enables us to compare and contrast them with one another. To illustrate the outputs of the study, I posed five relevant questions and summarized the fatwas’ responses to each question (table 1).
Does the fatwa permit GCS?
Are transgender people included in the permitted GCS?
Are intersex people included in the permitted GCS?
Does the fatwa link GCS with illness?
Is it obligatory for those who are permitted to undergo GCS to do so?
To make the similarities and differences between the fatwas more visible, it would be helpful to observe the distinctions between Khomeini’s view and the other three fatwas. The legal-hermeneutical examination presented in this study demonstrates that all three fatwas essentially rely on the concepts of illness. The fatwas of the Islamic Fiqh Council and the NCIRA allow intersex cases to undergo GCS only under medical conditions, meaning that intersex people must prove that they suffer from physical illness and need to be operated on to be cured. Therefore, in line with these two fatwas, transgender people are not allowed to undergo GCS, as they have complete sex organs and thus do not suffer from a physical illness. Ṭanṭāwī also grounds his fatwa on the notion of disease. However, he, unlike the authors of the previous fatwas, classes transgender people as hermaphrodite by their internal nature, whereas intersex people are hermaphrodite by their external nature. In Ṭanṭāwī’s view, while intersex people suffer from a physical disease, transgender individuals suffer from a mental illness, and thus they are arguably permitted to undergo surgery. Khomeini, in contrast, relies on the concept of individuals’ rights to their bodies, as addressed, at least, in one of his possible legal arguments, namely, the legal maxim of dominance. Therefore, in his view, GCS is permitted for anyone, including intersex and transgender people, who desire to undergo this surgery. This is because humans have rights to their bodies, and if they, for whatever reason, demand changes in their bodies, it should be allowed according to Islamic law. Therefore, in line with Khomeini’s fatwa, individuals who do not identify as intersex or transgender should also be allowed to undergo GCS if they wish.
Moreover, the permissibility of GCS for determinate intersex people (as the Islamic Fiqh Council stipulates), or both determinate and indeterminate intersex people (as the NCIRA fatwa allows), or intersex and transgender people (as Ṭanṭāwī’s fatwa implies), turns out to be categorically obligatory for such individuals according to these three fatwas. The logic behind this approach is that they link the permission of GCS with illness and the maxims of necessity and no harm and no retribution. It is important to bear in mind that these three fatwas conceive of the whole process, including the surgery, as medical treatment. Given that a surgical operation is the only way to be cured, surgery must be undergone as a religious responsibility of the ill person. Khomeini, on the other hand, does not regard GCS as mandatory for intersex or transgender people, as his fatwa is not tied to the illness of intersex and transgender people who need treatment. Thus it is not based on the maxims of necessity and no harm and no retribution. By not grounding his fatwa on illness and the aforementioned maxims, Khomeini provides a wider legal space for intersex and transgender people, acknowledging their right and consent to undergo GCS. Thus GCS is optional and nonmandatory for those who wish to undergo it.
Finally, given the concepts of right and nonmandatory GCS, I infer that, following Khomeini’s fatwa, intersex and transgender individuals are allowed to undergo GCS when they can independently use their right and make decisions or legally express their consent; that is, they should have reached, at least, the age of nine for girls and fifteen for boys, following Khomeini’s view on the legal puberty of girls and boys in Islam. Moreover, in the same line of reasoning, the parents of intersex children cannot make them undergo GCS, as parents have no right to their children’s bodies. In contrast, it is apparently accurate to conclude that according to the Islamic Fiqh Council’s, the NCIRA’s, and Ṭanṭāwī’s fatwas, GCS must be undergone in case of an illness; otherwise, as Ṭanṭāwī indicates, ill individuals who decide not to undergo GCS are blameworthy. Thus the consent of patients or their choice is not validated in these fatwas. In line with the same logic, parents of intersex children can (or perhaps must, as part of their religious responsibility) have their children undergo GCS.
Conclusion
The Islamic fatwas on GCS have been criticized for linking GCS with disease and thus for holding that intersex and transgender people who seek GCS are mentally or physically ill. Having examined four fatwas of this kind, I conclude that this criticism is mostly warranted, as Islamic legal opinions on GCS often regard GCS as medical treatment, and those who are permitted to undergo it diseased individuals who need to be cured. This article also demonstrates that Khomeini’s fatwa provides a wider legal space for intersex and transgender people by acknowledging their right to undergo GCS; however, it sees GCS as an optional and nonmandatory procedure for those who, for whatever reason, wish to undergo GCS. Moreover, Khomeini’s fatwa does not seem to link GCS with illness or gender identity disorder. Therefore transgender and intersex people can apply this understanding of Khomeini’s fatwa and its capacity for nondiseased discursive space to lobby for better status and more rights for transgender and intersex people in Shiʿi or Muslim communities. For instance, Iranian transgender and intersex activists, relying on this capacity, can productively negotiate with state authorities in Iran not to consider GCS a cure for gender identity disorder or a strategy for heteronormalizing homosexual and bisexual people. Moreover, they can campaign for more rights for intersex and transgender people to undergo GCS without being categorized as having gender identity disorder. This appears to be more feasible as the government of Iran, under the current constitution, rules the country based on Islamic laws, and Khomeini’s Islamic legal opinions, because of his incomparable position in postrevolutionary Iran as the founder and first supreme leader of the Islamic Republic, are still uniquely influential on the country’s legal system.
Acknowledgments
I am grateful for the insightful comments offered by Susannah Cornwall on an earlier version of this article. I would also like to thank two anonymous peer reviewers of this journal for their constructive suggestions.
Notes
Cornwall (2019) provides an illuminating report on the discussion at the above-mentioned meeting.
As some scholars have noted (e.g., Cornwall 2019), all NHS gender clinics in England are overseen by NHS mental health trusts. Some transgender people oppose labeling transgender identity a mental health condition, because then it might be readily dismissed as being all in one’s mind. In recent years, however, transgender people have been classed as having “gender dysphoria,” “a condition where a person experiences discomfort or distress because there’s a mismatch between their biological sex and gender identity. It’s sometimes known as gender incongruence” (NHS 2016). However, the NHS website emphasizes that while “gender dysphoria is a recognized medical condition . . . [, i]t’s not a mental illness.” According to the guidelines presented on the NHS website, gender dysphoria usually can be diagnosed through a careful assessment made by at least two specialists either both from the Gender Identity Clinic (GIC) or one from the GIC and the other a general practitioner (GP). The website does not mention the types of specialists, but they very likely mean both psychologists/psychiatrists and medical doctors. The process may take several sessions of consultation with the person who might have gender dysphoria as well as discussions of the issue with the family members or partners of the person. It normally takes a few months (although, with regard to the waiting lists at NHS GICs, this process normally takes much longer, perhaps up to several years), and finally determines whether a person has gender dysphoria, and if so, GIC staff will discuss the subject with the person “to come up with an individual treatment plan,” including physical, mental, and psychological treatments. Following this, it is up to the person concerned to decide whether to follow that plan and recommendations. Since one must be considered as having gender dysphoria if one wishes to undergo GCS, I am wondering whether a person without this medical condition can, for whatever reason, receive permission for GCS and have access to medical facilities and spiritual care in the United Kingdom, according to the NHS. Medical expenses aside, my point is that if a person wishes to undergo GCS but not as a result of a gender identity disorder or even gender dysphoria, and given that all the expenses will be covered by the person, will the NHS provide this person with medical treatment, including GCS? This is an important question that deserves to be debated from both a scholarly and a health care point of view, and it is, I believe, open to investigation, as medical/health care laws of different states around the globe do not seem to have this on their agendas for discussion.
As Cornwall commented on an earlier version of this article, it seems that this point is highly “important” and “pragmatic.” Perhaps for this reason, many transgender and gender-variant individuals who are otherwise dissatisfied about being medicalized are willing to enter into a medicalizing scheme or account to access the care they need.
The choice of fatwas can be further explained on the following grounds: first, as indicated, they are frequently addressed by activists and academics in the West; second, they depict geographically diverse opinions from various Islamic regions (Saudi Arabia, Malaysia, Egypt, and Iran); and finally, they represent fairly, though not inclusively, major Islamic legal schools: Ḥanbalī (Islamic Fiqh Council’s fatwa), Shafiʿi (NCIRA’s fatwa), and Shiʿi (Khomeini’s fatwa). Following al-Azhar’s policy, Ṭanṭāwī’s fatwa perhaps represents all four major Sunni legal schools, though he himself is known to be a Shafiʿi.
For a useful history on transsexualism, see Green 2020.
There has been an extensive debate on trans terminology, as the term transgender has faced various critiques. More recently, the shortened form trans has become a common way to avoid the gender/sex controversy. To read a relatively comprehensive discussion on this issue, see Bettcher 2014 and Green 2004.
For more information on the intersex issue in Islamic law, see Gesink 2018, 2021, and Sanders 1991.
Although some Muslim scholars try to apply more modern medical terms to determine the gender or sex of a khunthā, traditional scholars (Gesink 2018: 155–56; Sanders 1991: 77–78) mostly identify a khunthā’s gender or sex using biological signs such as which genitalia the khunthā urinates from or the one the urine initiates from or ends with (during childhood and before puberty) or by observing the growth of facial hair, the secretion of semen, menstruation, or the growth of breasts (after puberty).
It should be noted that the term variant sex characteristic (VSC) has also been used in reference to intersex individuals (Equality Network n.d.).
A decade earlier the Harry Benjamin Standards of Care used the term gender dysphoria syndrome (Meyer et al. 2001). Also see World Professional Association for Transgender Health n.d.
The Institute of Qiṭāʿ al-Iftāʾ wa al-Buḥūth al-Sharʿiyya, run by Mālikī scholars (ʿulamaʾ) of Kuwait, issued a fatwa on transgender GCS (Al-Majmūʿat al-Fatāwā al-Sharʿiyya 1996, 2:298–300). The institute received a letter requesting a fatwa on a female-to-male transgender case who had already undergone transition outside Kuwait despite specialists’ view in Kuwait. The answer from the institute was “This person is a complete female, and she is indeed imitating males, while the Prophet of God (peace be upon him) in a ḥadīth, transmitted by al-Bukhārī and others, cursed those women who imitate men and those men who imitate women. And the surgical operation addressed in the question does not change this woman as being female. Performance of such surgery by a Muslim physician should be considered a crime and a religious disobedience which deserves to be subject to a discretionary chastisement [taʿzīr]. Whoever contributes to this surgery . . . should also be subject to a discretionary chastisement. And God knows best.” The fatwa explicitly condemns GCS for a female-to-male transgender person and asserts that the person is still completely a woman despite the operation. In fact, this fatwa is grounded on the second source of Sunni ijtihād, namely, the sunna. According to this fatwa, there is a hadith from the Prophet, transmitted by al-Bukhārī, that implies that transgender GCS (for both male to female and female to male) is generally prohibited in Islam. Moreover, it remarks that the surgeons and their assistants who perform GCS are guilty of offensive acts and religious disobedience and must be punished. This means, according to this fatwa, that GCS is not permitted for transgender people in Islam even as a medical treatment. This fatwa, however, does not talk about permissibility or prohibition of GCS for intersex people.
Although the Ḥanbalī legal school theoretically refutes the validity of qiyās, this approach has been disregarded by later Ḥanbalī scholars in an attempt to prevent the school’s extinction (Hallaq 2011: 33).
A similar fatwa was issued by the Indonesian Islamic council, Majelis Ulama, on June 1, 1980. See MUI Digital 1980 for a copy.
Jakob Skovgaard-Petersen (1997: 332) explains that Ṭanṭāwī copied his fatwa “word-for-word” from a fatwa issued by his predecessor Shaykh Gad al-Haq Ali Gad al-Haq a decade earlier in response to a query from the Malaysian Center for Islamic Research in 1981.
Translation of the fatwa is by Skovgaard-Petersen (1997: 329–31), although the transliteration of Arabic terms has been changed for the sake of consistency with the rest of the article.
I use intersex as a more accurate translation of khunthā throughout the article, following Skovgaard-Petersen’s translation of the fatwa, but I apply the inaccurate classical concept of hermaphrodite, always in italics, to analyze Ṭanṭāwī’s fatwa.
The fatwa is dated almost two decades before the 1979 revolution in Iran under Khomeini’s leadership. Therefore it is possible to assume that Khomeini issued the fatwa in favor of GCS long before his political biases were relevant.
Given Khomeini’s position in postrevolutionary Iran as the first supreme leader, it may come as a surprise that it took more than a decade after the revolution for the national government to approve the fatwa and revise the law. Under current state law, GCS is allowed and supported by the Iranian government. Transgender and intersex people receive the security of a new birth certificate, a new identity card, and a new passport, as well as financial access to other facilities for their surgery. Nevertheless, it seems that the Iranian authorities did not completely follow the fatwa. They consider GCS the cure for gender identity disorder and even a strategy of “heteronormalizing” homosexual and bisexual people. Najmabadi (2014: 1) writes: “For legal and medical authorities in Iran, sex change is framed explicitly as the cure for a diseased abnormality (gender identity disorder), and on occasion it is proposed as a religio-legally sanctioned option for heteronormalizing people with same-sex desires and practices.” It appears that the fatwa became a refuge for the authorities to politically justify their policy toward people who wish to undergo this transition. One might wonder how the state could legalize such a policy when Khomeini’s fatwa does not imply GCS as a cure strategy for transgender and intersex people who are perceived as mentally ill or as having gender identity disorders. One can also question whether the state follows this fatwa at all.
An image of the original fatwa in Persian can be seen at http://www.forum.mahtaa.com/Thread-تغییر-جنسیت،-اسلام-و-اهل-سنت
Interestingly, it has recently been suggested that the Gender Recognition Act of 2004 (GRA 2004) be changed in favor of self-determination in the United Kingdom (Amnesty International UK 2018). According to the GRA 2004, for instance, individuals will still be required to convincingly show their intention to live in the acquired gender for the rest of their lives. Thus the GRA 2004 implicitly assumes that steadiness and stability are desirable and that any subsequent wish for detransitioning would be evidence that the wrong decision had been made.
Shīʿī jurists are required to be aware of the case, topic, or subject of their ijtihād prior to it. However, given the modern Shīʿī ijtihād, it is commonly accepted that jurists do not need to initiate debating or investigating the meaning and identification of the subjects of legal rulings in all cases of ijtihād. This is, in fact, beyond the scope of ijtihādic scholarship. Nevertheless, a Shīʿī jurist needs to understand the subjects of legal rulings before practicing ijtihād to issue relevant fatwas on given cases. In brief, the subjects of legal rulings are divided into three types: (1) subjects created and determined by the Qurʾan or sunna, such as the conceptualization of prayer (ṣalāt) and fasting (ṣawm) in Islam, called divinely created subjects (al-mawḍūʿāt al-mukhtaraʿa wa al-manṣūṣa); (2) subjects whose meanings are determined by individuals and society—whether the general public or the professional community—such as the various subjects of trades (muʿāmilāt), called customary subjects (al-mawḍūʿāt al-ʿurfiyya); and (3) subjects that were originally customary, such as the meaning of marriage in Islam, but whose scope might be expanded or limited by the Qurʾan or sunna. As some scholars (Stern 1939) have concluded, the concept of marriage in pre-Islam Arabia was much broader than that of Islamic marriage (nikāḥ). According to modern Shīʿī ijtihād, the first and third groups of subjects above should be debated by jurists directly. With regard to the second group, the customary subjects, jurists are required to educate themselves by asking the general public or the professional community.
