Pakistan’s Transgender Persons (Protection of Rights) Act uses a broad definition of transgender, in which intersex is considered a sub-category. It is emblematic of the confusion around terminology and conflation of the two, as intersex, as defined in Islamic law, cannot be analogized to transgender. To understand the distinction, we can turn to a paper published in August 2020 by Dr. Nasir Malim and Dr. Aasim Padela, the Director of the Initiative on Islam and Medicine at University of Chicago, titled Islamic Bioethical Perspectives on Gender Identity for Intersex Patients. It introduces how intersex individuals and their medical needs can be approached in contemporary medicine by giving primacy to an Islamic lens, instead of a secular-liberal one.
The paper references a chapter in Mukthasar al-Qudūri, one of the most famous fiqh texts of the Hanafi madhab, to define intersex, or khunthā, and how they were approached under Islamic law. Intersex refers to persons born with physical ambiguity: either with both male and female physical characteristics, or a complete absence of genetalia. As a side note, khunthā is often confused with mukhannath, and while the words share the same root, the latter refers to effeminate males (where there’s no confusion about their being male), not intersex persons.
The first discussion is of the process of determining the gender of an intersex child. Mukthasar al-Qudūri lists which genital they urinate from as the first method of discernment. In some cases it’s clear that the child is female or male but with some additional physical features of the other (ie the sex characteristics are not present equally, the characteristics of one is present more than the other), or by the appearance of secondary sex characteristics, for example breasts when one reaches puberty. After the gender is established, they are no longer considered ambiguous. However, if there is still ambiguity (for example, in cases where male and female characteristics are present equally), they are considered khunthā mushkil, translated in the paper as complicated intersex, and there are rules specific to them such as a unique placement when praying in a congregation and inheriting an amount different from both men and women. The paper goes on to cite different fatawa (legal opinions given by a jurist),
“There were two primary themes throughout the fatāwa. The first discussed the meaning of the term intersex, which was also used interchangeably with hermaphrodite and khunthā. The second centered on a key point: although under normal circumstances procedures that alter physical markers of biological sex are not allowed, in the case of intersex patients such a procedure may be permitted on the basis of medical need.”
Unfortunately, many use this fiqhi acknowledgement of intersex persons as evidence that current gender and sexuality norms are valid within Islamic law. Or, that restorative procedures are analogous to transitioning from male to female or vice versa on the basis of self-referential identification. Such analogies fail because the first is concerned with “clarifying the sex”, and the latter with “changing it”. To argue as such is part of a progressive methodology that dubiously assumes secular liberal norms as correct and imposes faulty allowances onto Islamic laws, instead of grounding oneself firstly in Islamic theology, usul al-fiqh, and fiqh. In a two-piece article series, Mobeen Vaid and Waheed Jenson note,
“…the Sharīʿa acknowledges and accommodates those who are congenitally nonconforming in gait, speech, and other such behaviors but does so while upholding the reality of their underlying sex and, in fact, maintaining the vast majority of sex-specific sharʿī rulings (e.g., inheritance, marriage) on the basis of biological sex rather than internal disposition or outward behavior.”
A lack of acknowledgement and understanding of intersex among some communities has led to ostracization and physical abuse of such individuals, which is vile and unjust. However, while upholding their rights and supporting avenues for them to lead fulfilling lives, conflating between intersex, transgender, and contemporary notions of a gender spectrum, under Islamic law is inaccurate. While there can be complexity in physical gender and differing levels of ambiguity/abnormality in sex characteristics, Dr. Malim and Dr. Padela note that the chapter on khunthā “indicates that Islamically, a gender binary is sought out”, with the few rulings specific for the intersex person only if discernment is not possible. The guidances on intersex individuals are to establish the sex in cases of abnormality, i.e. they are not applicable when it’s already established.
Especially as technology progresses, this is an area of biomedical research in dire need of explication from a close collaboration between scholars and Muslim physicians with Islam as the guiding beacon. Due to the proliferation of misinformation and doubtful sources, there’s an urgent need for up-front clarity especially to English speaking audiences, both Muslim and non-Muslim. Brushing over these topics has created confusion for the sincere Muslim and unease as to how maintain conviction when faced with such questions while engaging others with differing worldviews and ideologies.
There is a growing body of resources in English (like the ones linked above) from qualified individuals. It is our job to learn and turn away from the temptation to spread suspect opinions on the matter of divine law. The challenges and questions of today are not unique insofar as our tradition provides us with the framework to tackle them.
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Farhana Khan is based out of North America. She is interested in the Islamic sciences and medical ethics.