The contribution of Sunni Islamic
scholars and Muslim medical scholars
to the discussion on transgender sex
reassignment surgery in Islamic
bioethics.
Name: Verena Hoeke Student nr.: 11792140 Date: July 6, 2019
Teacher: dhr. prof. dr. G.A. Wiegers Nr. of words: 23273
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Content
1. Introduction page 3
2. Methodology page 7
3. Theoretical Framework page 10
- The contribution of Islamic scholars and biomedical page 10 scientists to Islamic bioethics
- Fatwas on sex reassignment surgery in the case of the khunthā page 12 - Fatwas on transgender sex reassignment surgery page 13 - Transgender sex reassignment surgery and homosexuality page 18
4. Chapter 1: Collective Sunni fatwa bodies page 20
- Islamweb, Islam Q&A, and the Permanent Committee for
Scholarly Research and Ifta’ page 20
- The questions page 21
- The responses page 22
- Their contribution to the bioethical discussion on transgender
sex reassignment surgery page 25
5. Chapter 2: Individual Sunni scholars page 27
- Ali Gomaa, Abdul Karīm al-Khuḍayr, and Atiyya Ṣaqr page 27
- The questions page 28
- The responses page 28
- Their contribution to the bioethical discussion on transgender
sex reassignment surgery page 34
6. Chapter 3: Medical Sunni scholars page 35
- Dr. Shaal and Dr. Hatem al-Haj page 35
- The questions page 35
- The responses page 37
- Their contribution to the bioethical discussion on transgender
sex reassignment surgery page 40
7. Conclusion page 41
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Introduction
During the pre-modern period, Muslim societies knew six manifestations of sexual ambiguity: the khaṣī, the hijra, the mukhannath, the khunthā, the mamsūḥ, and the mutarajjula. The khaṣī, eunuch, is a castrated male. These men were employed as guards and servants in harems, or as chamberlain to kings in the Middle East and China. They were born with the male genitalia and were raised as boys until castrated.1 Even though castration is forbidden in Islam, in social reality, castration originated from
pre-Islamic times and has since then served as an extralegal punishment.2After his castration, the khaṣī does
not change to female, but is left belonging to neither sex, both legally and socially.3
The hijra is born with the male genitalia, and is raised as a boy; however, after reaching adulthood, he assumes a female gender. In South Asian countries, for example Pakistan and Bangladesh, many voluntarily undergo castration to remove the testicles and penis. They wear female clothing, grow long hair, use make-up, wear jewelry, and assume a more feminine voice.4
The mukhannath is mostly identified by later Muslim lexicographers as a man born with the male sexual organs who resembles or imitates a woman in the languidness of his limbs or the softness of his voice. Other Muslim lexicographers argued that the term mukhannath derived from khunthā, a hermaphrodite individual, based on a parallel sexual ambiguity. In this view, a mukhannath is a hermaphrodite individual and would be categorized in that group accordingly. However, according to the first meaning of the term, a mukhannath is a male showing effeminate behavior, and it does not describe sexual organs, sexual behavior, or sexual orientation. In medieval times, the term mukhannath also came to be used for those who took on a passive role in same-sex acts.5
According to Mohd. Shuhaimi Bin Haji Ishak and Sayed Sikander Shah Haneef, the term mukhannath literally means a man whose voice resembles a women’s voice. Technically, however, Muslim jurists defined the mukhannath in various ways. To the Hanafis and Hanbalis, there were two types of mukhannathūn, the first one being a male with a tender effeminate voice and having no desire towards women and displaying no anti-social behavior. If this was the case, they could enter women’s quarters, contrary to the other type of mukhannath, who was morally corrupt and should be banned from interaction with women. To the Malikis and Shafi’is, the mukhannath was a man whose voice resembled a woman’s voice and showed several other types of effeminate features in talking, looking, thinking, and judgment. As long as he had no sexual desires for women, he could have a social encounter with them.6
Ishak and Haneef add that the jurists formulated a set of different laws for the mukhannath of the erotic type, based on the Prophetic tradition that Muhammad cursed the males who appear like females and the females that appear like males. This Prophetic condemnation is confined to those who deliberately deviate from their set gender with which they were born. This erotic mukhannath was subjected to legal restriction, such as being prohibited from committing homosexuality, not being allowed to lead prayer, not being allowed to interact with women, and not being allowed to marry a
1 M. Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery:
A case study of Ayatollah Khomeini’s and Sheikh al-Ṭanṭāwī’s fatwas,” International Journal of Transgenderism 18, no. 1 (2017), 91.
2 “Castration,” Encyclopaedia Iranica, accessed March 3, 2019,
http://www.iranicaonline.org/articles/castration-of-men-kasi-kardan-kaya-kesidan-kaja-kardan.
3 Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery,”
91.
4 Ibid., 92. 5 Ibid., 92.
6 Mohd. Shuhaimi Bin Haji Ishak and Sayed Sikander Shah Haneef, “Sex Reassignment Technology: The
4
woman if he indulged in homosexuality. The erotic mukhannath was also not encouraged to seek employment in slaughterhouses, he was not regarded as a credible witness in court, and lastly, if he committed homosexuality, he would be subjected to Islamic punishments.7
The mamsūḥ is someone who lacks either male or female genitals, and the khunthā, the hermaphrodite individual, is someone born with both male and female sexual organs and genitals.8 And
lastly, the mutarajjula is a woman who resembles a man in her clothing and way of speech, being the equivalent of the mukhannath.9
The modern term “transgender” describes both men and women who feel that they are trapped in the wrong bodies, and they may decide to change their bodies through sex reassignment surgery. According to Mehrdad Alipour, this identity does not correspond to one of the categories mentioned above, established by Islamic societies.10 At first glance, according to Taqwa Zabidi, this condition resembles
characteristics of the khunthā, the hermaphrodite individual, as jurists of the four Sunni schools of thought consistently discussed the condition of the khunthā in relation to the abnormality of an individual’s sexual anatomy. 11 According to Sayed Sikander Shah Haneef and Mahmood Zuhdi Haji
Abd Majid, since the normative standard of human classification in terms of sex in Islam only grants space for a binary system of male and female, the Muslim jurists connect a hermaphrodite individual to either the male or female sex based on the potency/functionality of his/her two organs. If he/she urinates from the penis, he/she will be regarded as male, but if he/she urinates from the vagina, he/she will be classified as female. This classification is of great importance in Islam because of the gendered structure of the Islamic rules of conduct which call for a segregated or differentiated application of some laws regarding individuals. The Prophet’s answer to the question of how a hermaphrodite individual would inherit, inaugurated the foundation for later discourse on the issue of the khunthā. The Prophet answered that he/she would inherit as a man if he/she urinated from the penis, and as a female if he/she urinated from the vagina. In the absence of such physical signs, he/she is classified as a problematic hermaphrodite, al-khuntā al-mushkil.12
According to Haneef and Majid, this statement of the Prophet in designating the urinating organ as the primary determining factor for the differentiation between male and female hermaphrodites became the yardstick from which the juristic theory of diagnosing the actual sex of the khunthā evolved. Abū Hanīfa, for instance, argued that a khunthā is a male if he/she urinates from the penis, but is a female if he/she urinates from the vagina. If he/she urinates from both, his/her sex is determined based on the organ from which the urine exits first. If, however, both excrete simultaneously, Abū Hanīfa refrained from commenting, but his students, Abū Yūsuf and al-Shaybānī, argued that the organ from which he/she urinates most would determine his/her sex.13
If the predominance of maleness and femaleness in hermaphrodite individuals cannot be determined as such during their infancy, then the Hanafi jurists postponed their judgment until the infant
7 Ishak and Haneef, “Sex Reassignment Technology,” 524-525. 8 Ibid., 92.
9 Alipour, “Sex-Reassignment Surgery Fatwas,” 166.
10 Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery,”
92.
11Taqwa Zabidi, “Analytical Review of Contemporary Fatwas in Resolving Biomedical Issues Over Gender Ambiguity,”
Journal of Religion and Health 58, no. 1 (February 2019), 155.
12 Sayed Sikander Shah Haneef and Mahmood Zuhdi Haji Abd Majid, “Medical Management of Infant Intersex:
The Juridico-Ethical Dilemma of Contemporary Islamic Legal Response,” Zygon: Journal of Religion and Science 50, no. 4 (December 2015), 811
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reached puberty. Al-Kāsānī, for example, argued that if a hermaphrodite individual when reaching puberty grows a beard and is able to penetrate women, he is a male, but if he/she develops large breasts, conceives, and can be penetrated in the vagina, she is a female. However, if the hermaphrodite individual exhibits neither of such masculine or female characteristics, he/she would be characterized as a problematic hermaphrodite.14
According to Haneef and Majid, the criteria of the Hanbalis corresponded to the criteria of the Hanafis based on the urinating organs and the quantity of the urine produced by any of the organs in order to distinguish problematic hermaphrodites and non-problematic hermaphrodites during infancy. However, they looked for the secretion of semen, menses, and growth of a beard or breast for determining the sex for an adult hermaphrodite individual. Ibn Qudāma added that hermaphroditism also included other complex cases of indeterminate sex, which up to his time were unknown to the community of jurists. For example, a baby may be born without genitals, but with a large opening from which his/her urine continuously oozes, or a baby may have a single opening passage from which he/she excretes both feces and urine, or a baby may totally lack genital openings through which he/she vomits what he/she eats.15
Imam Mālik argued that a hermaphrodite individual is primarily a male; however, God has created him with extra genitalia. Nevertheless, the majority of the Maliki school of law agreed with the Hanafi’s criteria for determining the sex of a hermaphrodite infant. They argued that the growth of breasts and the production of menses were indicators of femaleness, and the occurrence of nocturnal dreams was an indicator of maleness. However, if a hermaphrodite individual exhibits both masculine and feminine characteristics, or none of them, he/she would belong to the category of the problematic hermaphrodite.16
According to Haneef and Majid, the Shafi’is added more criteria. They argued that if he/she urinates from both genitalia, they should see from which of them he/she urinates first, then from which he/she stops first, and then which of the two drops more urine. So, if the starting and ending of the urination are simultaneous, then the standard is the amount of the urine which any of the organs excrete. In the case of pubescent hermaphrodite individuals, the Shafi’is refuted the growth of a beard and breasts as early indicators of sex configuration. However, they also underline several other signs, including the secretion of semen and menstruation. If he/she secretes semen from both genitals, then it must be examined if it is sperm or ovum. However, if he/she secretes sperm from one and ovum from the other organ, then no sex can be assigned to him/her. And, if he/she urinates from the penis and menstruates from the vagina, this is complicated because he/she can be male or female, and is therefore categorized as a problematic hermaphrodite.17 According to Ishak and Haneef, this problem could be
solved with the progress of modern medicine, because sex determination goes beyond the function of genitals.18
As noted before, the category of the khunthā does not correspond to being a transgender person. In recent decades, transgender individuals have become more visible as they openly struggle for their rights.19 According to Scott Siraj al-Haqq Kugle, currently, there is an international network of advocacy and support groups for lesbian, gay, and transgender Muslims. Albeit all embedded in
14 Haneef and Majid, “Medical Management of Infant Intersex,” 812. 15 Ibid., 812
16 Ibid., 812. 17 Ibid., 812-813.
18 Ishak and Haneef, “Sex Reassignment Technology,” 525.
19 Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery,”
6
different national environments, these groups are all allied and share various concerns or exchange their ideas. The groups include the Inner Circle in South Africa, the Al-Fatiha Foundation in the U.S., the Salam Queer Community in Canada, the Imaan and the Safra Project in the U.K., and the Yoesuf Foundation and the Habibi Ana Foundation, both located in the Netherlands. They all focus on building confidence, raising consciousness, and encouraging ijtihād, independent legal reasoning, in the interpretation of Islamic law. These Islamic groups are mainly found in secular democratic nations with Muslim minority communities where lesbian, gay, and transgender Muslims can voice controversial opinions, appeal for rights, and articulate alternative views of Islam without overwhelming fear of persecution.20 According to Alipour, these struggles caused Muslim scholars to issue fatwas in which
the subject of sex reassignment surgery was discussed and legalized according to Islamic law. According to him, these fatwas can be seen as the first step towards giving transgender Muslims the right to live out their Islamic ideals.21
As most literature on sexual ambiguity in Islam focusses on the position of the khunthā and mukhannath in Islamic Law, much is left unknown regarding the condition of transgender Muslims. As noted before, transgender individuals have become more visible as they openly struggle for their rights, which led various Islamic scholars and Muslim medical scientists to issue fatwas discussing the issue of transgender sex reassignment surgery. In this research, these recently issued fatwas will be analyzed to provide new information regarding transgender sex reassignment surgery in the field of Islamic bioethics. It will answer the question, how Sunni Islamic scholars and Muslim medical scholars contributed to the discussion on transgender sex reassignment surgery within the field of Islamic bioethics. The fatwas used in this research can all be found online, and can all be found by transgender Muslims who are searching for answers to their condition. They will be analyzed utilizing the method of critical discourse analysis, which will also serve as a contribution to the use of critical discourse analysis in the study of religion.
To provide an answer to the main question, first, currently available research into sex reassignment surgery in Islam will be discussed together with the importance of ijtihād. Then, the position of various collective fatwa bodies, individual scholars, and medical scientist regarding transgender sex reassignment surgery will be discussed together with the question how their fatwas contributed to the broader discourse on transgender Muslims and transgender sex reassignment surgery.
20 Scott Siraj al-Haqq Kugle, Homosexuality in Islam: Critical Reflection on Gay, Lesbian, and Transgender
Muslims (Oxford: Oneworld, 2010), 3-4.
21 Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery,”
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Methodology
According to Titus Hjelm, Discourse Analysis is the study of how to do things with words. It examines how identities, relationships, beliefs, and knowledge systems are produced in language use. Even though it has been a popular method in other areas of humanities, religious studies has not adopted discourse analysis in any systematic way, as the focus of religious studies has been on discussing discourse as a theoretical concept.22
Hjelm mentions three different approaches to discourse analysis, being the cognitive approach, the approach based on the analysis of interaction, and the critical approach,23 of which critical discourse
analysis is the most relevant to this research. Critical discourse analysis differs from the other two approaches as it focusses on the construction of power and ideology in discourse. It also acknowledges that there exists a reality outside of the discourse that is reproduced and changed discursively. For critical discourse analysis, it is also important to examine, in addition to what is said in the discourse, what is not said in the discourse, being, all that is taken for granted. At the same time, critical discourse analysis, as opposed to the other two approaches, is more interested in the social and political context.24 Also, what
makes critical discourse analysis so unique, is its division of the analysis into three different aspects that complement each other, being the textual analysis, the analysis of discourse practice, and the analysis of social practice.25
According to Hjelm, the most important aspect of critical discourse analysis is the text. This textual analysis should then proceed from the micro-analysis of words to a larger-scale analysis of the organization of the meaning of the text as a whole. Transitivity is what describes the processes depicted in discourse and the relationship between participants in these processes. The analysis of this transitivity is crucial to understanding the representation of actions in discourse. The equivalent of this transitivity is modality, meaning how the participant is committed to the claim that is being made. This modality is often expressed by the use of modal verbs, their negation, adverbs, and categorical language, which often appears in texts that attempt to be authoritative.26
Analyzing words, transitivity, and modality means looking at the relationship between the form of the text and its meaning. Whereas analyzing presuppositions means looking at the implicit assumptions made in texts. There are four different ways in which these presuppositions are built into texts. First, certain words imply a certain meaning, such as stop, which implies the existence of movement. Secondly, presuppositions can be triggered by definitive articles and possessive articles.
22 Titus Hjelm, “Discourse Analysis,” in The Routledge Handbook of the Study of Religion, ed. Michael
Stausberg and Steven Engler (New York: Routledge, 2011), 134-135.
23 Ibid., 136. 24 Ibid., 140-141.
25 Titus Hjelm, “Theory and Method in Critical Discursive Study of Religion: An Outline,” in Making Religion:
Theory and Practice in the Discursive study of Religion, ed. Frans Wijsen and Kocku von Stuckrad (Leiden: Brill, 2016), 23.
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Thirdly, interrogative pronouns often presuppose a state of things which is not explicitly mentioned in the text itself. And finally, noun modifiers can also trigger presuppositions.27
These linguistic tools analyze the structuring of propositions on the level of clauses, but rhetoric and narrative organize these clauses into a coherent whole. According to Hjelm, it is sufficient to say that the aim of analyzing rhetorical tropes, such as metaphor and metonymy, is to examine the argumentative and persuasive aspects of the text. The final aspect of textual analysis is the focus on narrative. The study of narrative in the context of critical discourse analysis means analyzing the sequence in which events are presented in the discourse, meaning how the story unfolds.28
The analysis of discourse practice is the second stadium between the analysis of the text and the social practice as it is the field of the production and consumption of the text. According to Hjelm, the study of discursive practice is the study of how authors draw on already existing discourses and genres to create a text, and how the receivers of the text also apply available discourses and genres in the consumption and interpretation of the text.29
The third aspect, the analysis of social practice, can according to Hjelm be summarized as a focus on things such as, for example, the immediate situation that has given rise to the production of the text, and the socio-cultural practices and discursive conditions that at institutional level and societal level provide a broader contextual relevance. This social context can be examined by analyzing actors, groups, and relationships between these groups and actors in society. Within critical discourse analysis, the context can also be analyzed by looking at how power is structured within a field of hegemony and ideology. According to Hjelm, it is this analysis of the social practice what makes critical discourse analysis different from the other approaches.30
According to Mohd. Salim Mohamed and Siti Nurani Mohd Noor, for Muslims, it is crucial to justify and legitimize all decisions and procedures related to medical treatment in line with Islamic law. Islamic bioethics is therefore an expansion of Islamic law which is based on the Qur’an and the Sunna, ijmā‘, qiyās, and ijtihād. According to Mohamed and Noor, this interpretation of Islamic law reflects the dynamism in Islam, which enables it to respond to issues in modern medicine and associated innovations.31
A fatwa is a legal opinion or an Islamic religious decree issued by a religious scholar, a mufti, on any current issue that has not been explicitly elaborated on in the Islamic juridical sources, and, according to Zabidi, the discussions in these fatwas can entail numerous biomedical issues.32 As these
fatwas provide answers that have not been discussed in the Islamic juridical sources, in this research, they will serve as the basis for analyzing the Islamic stance on transgender sex reassignment surgery. All fatwas used in this research are collected from the internet searching for fatwas on sex reassignment surgery. Keywords that have been used are ﺲﻨﺠﻟا ﺮﯿﯿﻐﺗ, ﺲﻨﺠﻟا ﻞﯾﻮﺤﺗ, ﺲﻨﺠﻟا ﺮﯿﯿﻐﺗ تﺎﯿﻠﻤﻋ, or ﺲﻨﺠﻟا ﻞﯾﻮﺤﺗ تﺎﯿﻠﻤﻋ. All cited passages from the Qur’an can be found in the Saheeh International, online available on Tanzil.net.
Before answering the main question, it is crucial to define the different terms used in the analysis of the various fatwas. In this research, the terms “transgender,” “transsexual,” “intersex,” and “hermaphrodite”
27 Ibid., 26
28 Hjelm, “Theory and Method,” 27. 29 Ibid., 27.
30 Ibid., 28-29.
31 Mohd Salim Mohamed and Siti Nurani Mohd Noor, “Islamic Bioethical Deliberation on the Issue of
Newborns with Disorders of Sex Development,” Science and Engineering Ethics 21, no. 2 (April 2015): 434.
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will be used to describe the individual’s state according to the descriptions made by Scott Siraj al-Haqq Kugle, as he will be referred to multiple times in this research. However, before describing these terms, a distinction must be made between the terms “sex,” “gender,” and “sexuality.” “Sex,” according to Kugle, refers to an individual’s anatomical genitalia, through which one is classified as male or female. “Gender” refers to an individual’s expression of social behavior organized by gender norms, through which one is classified as masculine and feminine. “Sexuality” refers to someone’s consciousness of sexual desire and expression of intimacy and pleasure, which includes not just one’s sexual orientation, but also more subtle issues of the degree of sexual desire, its intensity, and its focus.33
“Transgender,” according to Kugle, means that someone manifests the identity and behavior of the opposite gender from that which, in accordance with their anatomical sex, were socialized to be. A transgender individual has “moved across” from the gender into which he/she was socialized to the gender with which he/she identifies. If such individual acts to alter physique, hormonal balance, or sex organs to match their inner psychic gender identity, he or she can be called a “transsexual person.” “Transsexual” refers to a person who has “moved across” from the sex organs with which they were born to the sex organs with which they feel comfortable as the organs that accord with their gender identity. Therefore, one can be a transgender individual without becoming a transsexual individual, if one chooses not to use hormone therapy and/or sex reassignment surgery to alter the body to conform to one’s gender identity.34
Both transgender and transsexual individuals are different from “hermaphrodite” or “intersex” individuals. According to Kugle, a hermaphrodite is an individual born with both male and female anatomical features. They share similar struggles with transgender individuals, as they are not easy to categorize and often suffer stigma, marginalization, or violence for this reason. Many hermaphrodites undergo surgery, either by choice or often by imposition in infancy, to become either male or female since society offers no ambiguous middle ground. However, some transgender people deliberately inhabit this ambiguous middle ground even if society punishes them for it. These individuals can be identified as “intersex,” inhabiting a social space and bodily presentation that is between the two sexes. Some transgender people who have begun medical therapy to alter the body but have not completely changed into a “passable” male or female appearance may also be identified as intersex.35
33 Kugle, Homosexuality in Islam, 239. 34 Ibid., 240.
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Theoretical Framework
This theoretical framework will provide an overview of the currently available research on (transgender) sex reassignment surgery in Islamic bioethics. It will be divided into four parts. Firstly, the contribution of Islamic scholars and biomedical scientists to the field of bioethics. Secondly, research into fatwas on sex reassignment surgery in the case of the khunthā. Thirdly, research into fatwas on transgender sex reassignment surgery. And lastly, the connection between being transgender and homosexuality.
The contribution of Islamic scholars and biomedical scientists to Islamic bioethics
Sexual ambiguity is a complex and often confusing medical problem.36 According to Mohammed Ali
al-Bar and Hassan Chamsi-Pasha, during the second half of the twentieth century and the beginning of the twenty-first century, several issues arose in the field of Islamic bioethics. These issues included questions regarding abortion, organ transplantation, in-vitro fertilization, end of life issues, advance directives, cancer research, brain death, genetic engineering, genetic fingerprinting, and so forth. As the growing literature on these problems shows, Muslim religious scholars have been active in studying these contentious objects and providing religious and ethical guidance in the form of fatwas. These fatwas were then followed by healthcare providers in the Muslim world. For example, in 1959, various fatwas were issued by the Grand Mufti of Egypt on corneal transplantation and blood transfusion. A similar fatwa was then published by the Grand Mufti of Tunisia in 1959, and around the same time, various rulings on organ transplantation were issued by other Islamic scholars, a process that continued until 1990.37
According to Mohammed Ghaly, tackling these new issues from an Islamic religio-ethical standpoint requires a certain degree of independent legal reasoning, ijtihād. The optimal way to address the religio-ethical standpoints would be to practice independent legal reasoning collectively, and no longer on an individual basis, a view that has almost reached a point of consensus among contemporary Islamic scholars. The prominent Syrian jurists Shaykh Muṣṭafā al-Zarqā, for example, argued that individual ijtihād was once a necessity, but has now become a danger or harm and should be replaced with a collective form of ijtihād. Shaykh Yūsuf al-Qaraḍāwī similarly stressed that ijtihād has become one of today’s necessities because of the technological developments that changed the nature of many aspects of people’s lives. He added that this should be a collective ijtihād, being in the form of a scholarly assembly.38
36 AS Al Herbish, NAM al Jurayyan, AMA Bakr, MA Abdullah, M Al Husain, AA Al Rabeah, PJ Patel, A
Jawad, and AI Al Samarrai, “Sex Reassignment: A Challenging Problem – Current Medical and Islamic Guidelines,” Annals of Saudi Medicine 16, no. 1 (2016), 12.
37 Mohammed Ali al-Bar and Hassan Chamsi-Pasha, Contemporary Bioethics: Islamic Perspective (New York:
Springer, 2015), 9.
38 Mohammed Ghaly, “Biomedical Scientists as Co-Muftis: Their Contribution to Contemporary Islamic
11
Regarding the field of Islamic bioethics, the need for collective ijtihād was not only advocated by religious scholars, but also by several Muslim biomedical scientists. According to Ghaly, in the 1980s, collective ijtihād in the field of bioethics assumed a clear institutionalized form through the establishment of Islamic institutions within which collaboration between religious scholars and biomedical scientists would happen on a regular and systematic basis.39 According to Dariusch
Atighetchi, together with the responses from congresses and conferences, as well as of various fatwa committees, the opinions and documents published by biomedical scientists have also been of great importance to the field of Islamic bioethics.40
So, as noted before, by the beginning of the 1980s, deliberations on Islam and its biomedical ethics started to assume a systemized and collective form through combining contributions from Islamic scholars and Muslim biomedical scientists. The original idea was that biomedical scientists would inform and educate religious scholars about the scientific and biomedical aspects of the specific religious issues. After being informed with sufficient information on the technical aspects, these scholars would then proceed with their normative role by construing their religio-ethical standpoint on the matter. Ghaly argues that instead of confining themselves to an informative role, these biomedical scientists infringed upon the normative role which is usually assigned to Muslim religious scholars. They also presented their perspectives on how the Islamic scriptures must be used to develop these Islamic religio-ethical standpoints.41
According to Ghaly, the first role played by biomedical scientists in the context of collective ijtihād is that of setting the agenda, for example, on which topics need to be discussed first, which ethical questions these topics entail, and how challenging these questions are from an Islamic perspective. The president of the Islamic Organization for Medical Sciences, located in Kuwait, 'Abd Raḥmān al-'Awaḍī, and the secretary general assistant, Aḥmad al-Jundī, are both medical specialists, al-Jundī being a pharmacologist and al-'Awaḍī being a Doctor of medicine. As for the Islamic Fiqh Academy and the International Islamic Fiqh Academy, these institutions have frequently approached physician Muhammad Ali al-Bar and the Syrian cardiologist Hassan Chamsi Pasha for the sake of determining their agenda in the field of Islamic bioethics. Sometimes, according to Ghaly, specific issues were proposed by biomedical scientists and became part of the collective bioethical deliberations, even though the religious scholars were unwilling to discuss these issues.42
The second role played by biomedical scientists, according to Ghaly, is providing the biomedical information needed for the development of the correct perception, taṣawwur ṣaḥīḥ, of the concerning issue. According to Yūsuf al-Qaraḍāwī, contemporary Islamic scholars need biomedical scientists because they are not as encyclopedic as their predecessors like, for example, Ibn Rushd. During a seminar held by the Islamic Organization for Medical Sciences in 1988, the Egyptian professor in the Faculty of Sharia at the al-Azhar University, Muḥammad Ra’fat 'Uthmān, argued that the studies of the earlier mentioned Saudi physician, Muḥammad al-Bār, should function as a guidebook for the Islamic scholars in the field of Islamic bioethics.43
According to Ghaly, some of this information provided by biomedical scientists is crucial, because without this information, religious scholars would not be able to develop any perception at all on specific bioethical issues. Without, for example, sufficient information about what cloning exactly is, what kind of techniques are used to clone animals, plants, or maybe humans in the future, and which
39 Ibid., 293.
40 Dariusch Atighetchi, Islamic Bioethics: Problems and Perspectives (New York: Springer, 2007), 13. 41 Mohammed Ghaly, “Biomedical Scientists as Co-Muftis,” 286.
42 Ibid., 300-301. 43 Ibid., 302.
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risks or benefits come along with these techniques, Islamic scholars would not even be able to embark upon drafting the broad lines of an Islamic perspectives towards cloning as a bioethical issue. Similarly, this is true for a wide range of other issues, like genetic engineering, gene therapy, the human genome, and stem cell research. These biomedical scientists also provide other pieces of information which are more corrective. According to Ghaly, without the help of biomedical scientists, Islamic scholars would develop flawed or incorrect perceptions, which would inevitably lead to incorrect conclusions or incorrect fatwas. The role of biomedical scientists in this respect is to restore the correct perception and re-orientate the resulting fatwa according to this perception.44
According to Ghaly, the third role played by biomedical scientists in the collective bioethical deliberations is the most controversial one. This role relates directly to the normative element of ijtihād,45 which is approaching the question or issue through the lens of scriptural texts and juristic
interpretive methods. This element usually ends by construing a religious ruling (ḥukm sharʿī ), and therefore, this element is sometimes called the forging of the religious ruling (tanzīl al-ḥukm al-sharʿī).46
Some religious scholars expressed strong reservations against these involving biomedical scientist in the normative element of ijtihād.47 Biomedical scientist, on their part, were not at all satisfied with playing
this limited role of informants who provide for religious scholars the biomedical information. According to Ghaly, they wanted to be involved in the full process of ijtihād, including both the informative and the normative element. Therefore, biomedical scientists engaged seriously in the normative religio-ethical deliberations and the formulation of fatwas, even though some scholars expressed their reservations. According to Ghaly, research on the collective deliberations on the bioethical issues indicates that this normative role on the part of biomedical scientists continued to exist in later research on bioethical issues.48
Fatwas on sex reassignment surgery in the case of the khunthā
According to Mohamed and Noor, in an international fatwa issued by The Islamic Fiqh Academy, sex reassignment surgery was permitted only for the case of the hermaphrodite individual. The Permanent Scientific Research and Ifta‘ Committee, based in Saudi Arabia, likewise concluded that sex reassignment surgery is only allowed for hermaphrodite individuals if there is a high guarantee of the establishment of the rightful sex of the individual after surgery. In Malaysia, the Fatwa Committee of the National Council for Islamic Affairs issued a fatwa in which they described a sex change from male to female, or vice versa, as prohibited according to Islamic law. According to them, someone born male/female will remain male/ female, even when he/she has successfully changed his/her sex. However, an individual that is born as a true hermaphrodite is allowed to undergo sex reassignment surgery to maintain the one genital which is the better functioning.49
According to Taqwa Zabidi, the aspect of surgical and hormonal treatments to resolve sexual ambiguity in the case of the khunthā is the aspect most discussed by legal scholars. The Islamic Fiqh Academy of the Muslim World League, the Council of Senior Scholars in Saudi Arabia, the Islamic Council for Fatwa in Palestine, the Fatwa Committee of The National Council of Islamic Religious Affairs in Malaysia, and the Religious Council of Indonesia base their arguments for the prohibition of sex reassignment surgery on the Quranic prohibition of altering Gods creation in order to ensure that the fatwa is only applicable to the khunthā, since this was regarded as an impairment. According to Zabidi,
44 Ibid., 302.
45 Mohammed Ghaly, “Biomedical Scientists as Co-Muftis,” 306. 46 Ibid., 288.
47 Ibid., 306. 48 Ibid., 307-310.
13
a more detailed guideline can be found in the Bayt al-Maqdis’ fatwa, which argues that there should be confirmation on health risk condition, the surgery being the last resort of treatment, high probability of benefits by assigning the sex, acceptance of the surgical treatment by the patient, and lastly, the availability of expert surgeons and their assistants before proceeding with a sex reassignment surgery.50
According to the Islamic Fiqh Academy of the Muslim World League, the Council of Senior Scholars in Saudi Arabia, the Islamic Council for Fatwa in Palestine, the Fatwa Committee of The National Council of Islamic Religious Affairs in Malaysia, and the General Authority of Islamic Affairs and Endowment in Kuwait, for the non-problematic khunthā, treatment is permissible trough either hormonal treatment or surgery whenever the physical characteristics of maleness or femaleness are clear. However, according to the General Presidency of Scholarly Research and Iftā’ in Saudi Arabia and General Authority of Islamic Affairs and Endowment in Kuwait, for the problematic khunthā, surgical treatment is not allowed whenever the physical signs of masculinity and femininity are vague in order to avoid any futile act. According to Zabibi, unlike these fatwas, those issued by the National Council of Islamic Religious Affairs in Malaysia state that the problematic khunthā is allowed to undergo surgical treatment; however, the status of the non-problematic is left undefined.51
According to Mohamed and Noor, biomedical scientists thus have their own guidelines for gender assignment. According to the modern Muslim physician, al-Jammas, new findings on chromosomal make-up or karyotype have made the process of sex determination more complicated. These findings contradict with the historical determination of sex which stresses the examination of only the external physical characteristics. According to al-Jammas, the determination of sex does not only depend on chromosomal factors, but also on psychological, hormonal, and psychosexual factors. Therefore, a sex reassignment surgery is only applicable for the khunthā after full verification by medical authorities.52
Ani Amelia Zainuddin and Zaleha Abdullah Mahdy describe two more bioethical approaches issued by al-Jurayyan, a Professor of Pediatrics from the King Saud University in Saudi Arabia, and As Dessouky, a pediatric surgeon from Egypt. Al-Jurayyan described a set of recommendations on the issue of sex reassignment surgery based on the existing fatwas issued by the Saudi Arabian ulama. First, a sex reassignment surgery is prohibited by the Qur’an and the Prophets sayings. Secondly, those who are born with both male and female genital organs require further investigation, and if there is a more dominant organ, he/she is allowed to have the other organ surgically removed. Lastly, al-Jurayyan obliges physicians to explain to the child’s parents the results of the medical investigations and whether the evidence indicates that the child is male or female in order to keep the guardians well informed.53
According to As Dessouky, sex reassignment surgery is a crime because it changes what God has created. However, if both masculine and feminine characteristics have developed within an individual, doctors should determine which one is more dominant and remove the other in order to achieve the best outcome for the individual. According to As Dessouky, the sexual orientation of a hermaphrodite individual can also contribute to the determination of his/her sex. If the attraction is to males, the individual will become a woman and should be treated like a woman, and vice versa.54
Fatwas on transgender sex reassignment surgery
50 Zabidi, “Resolving Biomedical Issues,” 161. 51 Zabidi, “Resolving Biomedical Issues,” 161.
52 Mohamed and Noor, “Islamic Bioethical Deliberation,” 434.
53 Ani Amelia Zainuddin and Zaleha Abdullah Mahdy, “The Islamic Perspectives on Gender-Related Issues in
the Management of Patients with Disorders of Sex Development,” Archives of Sexual Behavior 46 (2017): 355.
14
As mentioned before, the modern term ‘transgender’ describes both men and women who feel that they are trapped in the wrong bodies, and they may decide to change their bodies through sex reassignment surgery. According to Alipour, this identity does not correspond to one of the earlier mentioned categories established by Islamic societies. In recent decades, transgender individuals have become more visible as they openly struggle for their rights. According to Alipour, these struggles caused Muslim scholars to issue fatwas in which sex reassignment surgery was legalized by Islamic law.55
Fereydoon Mulkara, later Maryam Khatoon Mulkara, was a male-to-female transgender individual who as a child used to play with dolls and dressed in girls’ clothes. She prayed every night for a miracle to lose her manly body, and as a teenager, she developed strong feelings towards men. By the age of eighteen, for the first time, she met other transgender people. However, it was about 1975 when she, while wearing women’s clothes and working at the Iranian national TV, went to a psychologist to discuss her condition. The psychiatrist explained her that she was not gay but transgender. The doctor recommended a sex reassignment surgery, but because of her religious background and concern, she first visited Ayatollah Behbehani, who advised her to write a letter to Ayatollah Khomeini. His answer was based more on a hermaphrodite identity, and he advised her to dress and practice her religious duties as a woman. However, after the revolution, transgender people were harassed, jailed, and tortured. She was made taking male hormones to look like a man, and she was obliged to retire from her job. She then went to Aḥmad Jannatī, one of the conservative authorities of the Islamic Revolution, asking for tolerance towards transgender people and he told her to write Ayatollah Khomeini. For the second time, Maryam wrote Khomeini explaining her situation and asking him to issue a fatwa for transgender people who had undergone sex reassignment surgery.56
His answer was again the same, as it was about hermaphrodite individuals instead of transgender individuals, and Maryam was not sure that he had understood her correctly. Therefore, she decided to visit him in person to explain her situation as a woman being trapped in a man’s body. It took her eight years after the revolution to meet him. She had worn a man’s suit, carried a copy of the Qur’an, and tied shoes around her neck. The security guards started beating her until Khomeini’s brother, Hassan Pasandideh, stopped them and took her to Khomeini’s living room. Khomeini listened to her story and then consulted three of his most trusted doctors on her case. After half an hour, he issued a fatwa allowing Maryam and all other transgender Muslims to undergo sex reassignment surgery. Even though she could not undergo the operation until 1997, her struggles and efforts thrust Iran into the global leader for sex reassignment surgery as the Islamic government followed the fatwa and changed the law. Under current Iran, transgender sex reassignment surgery is allowed and supported by the government. After the surgery, they receive a new birth certificate, a new identity card, a new passport, and a loan for the operation is provided by the government.57
So, in 1987, one year before al-Ṭanṭāwī, Ayatollah Khomeini issued a fatwa for a transgender change from male to female. Khomeini’s fatwa was short, but unlike al-Ṭanṭāwī’s fatwa, quite clear. It allowed transgender Muslims to undergo sex reassignment surgery based on the recommendation of trustworthy doctors. Alipour argues that to the Shia school of ijtihād, if sex reassignment surgery is not necessary and urgent, it could not be permissible by the Sharia, because it will face other prohibitions,
55 Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery,”
92.
56 Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery,”
94.
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such as watching or touching the genitals of another person who is not your wife or husband. However, when the surgery is urgent and necessary, it is allowed. According to Alipour, as normal among Shia scholars, Khomeini did not cite the religious sources. Based on the Twelver Shia legal school, there are four sources to apply Islamic law to, the Qur’an, the Hadith of the Prophet and the twelve Imams, consensus (ijmā‘), and reason (‘aql). If there is not enough evidence in these sources, then a legal judgment should be understood by Islamic legal maxims or procedural principles. So, according to Alipour, Khomeini should first return the case to the Qur’an, the Hadiths, consensus, and reasoning, but as being transgender is a new phenomenon, there is nothing in the scriptures that refers to it. As the subject is controversial among Shia scholars and there is no clear statement from reason regarding transgender individuals, there is no other option than to return the subject to the Islamic legal maxims or the procedural principles.58
Firstly, according to Alipour, there are two legal maxims called the “principle of permissibility” and the “principle of lawfulness,” which could be used as references to allow sex reassignment surgery. These maxims mean that every action that cannot be categorized as being forbidden or permissible is allowed and lawful, unless they are explicitly forbidden in the Islamic sources. As part of the procedure, the surgeon and his assistants must see or touch the genitalia of the patient, which is forbidden in Islam. Therefore, in Khomeini’s fatwa, he allowed it if trustworthy doctors (psychologists or physicians or both) recommended such a surgery.59
Secondly, Alipour mentions another legal maxim called the “principle of dominant.” According to this principle, everybody has the right to control over his/her body and property. Based on this principle, everybody can change his/her body through surgery, and according to Alipour, Khomeini partly based his fatwa on this rule. As for the procedural principles, Khomeini could consider the “priority of sharia exemption,” meaning that if there is no clearly received evidence in the sources to forbid a subject or action, it would be considered permissible. Based on this principle, it can be concluded that transgender sex reassignment surgery is permissible, as long as there is no received evidence against it.60
The final step before Khomeini issued the fatwa was to consult with scientists and he also applied another important principle called “the role of time and place in ijtihād.” According to Khomeini, ijtihād is dynamic when considering the two important factors of time and place. It means that ijtihād can adapt to cultural conditions which change over the passage of time and variation in space. This rule makes the laws flexible over time and space, or more generally, across cultures. According to Alipour, Khomeini saw transgender sex reassignment surgery as pertinent to the new situation, as the post-revolutionary culture could provide it with a new fatwa.61
According to Zara Saeidzadeh, as a result, in 1984, juridical and medical institutions in Iran started to regulate the process of gender transition under the supervision of Iran’s juridical power. After Ayatollah Khomeini allowed sex reassignment surgery, in Iran, transgenderism was perceived as a psychological problem known as Gender Identity Disorder which describes the status of a person who is not content with his/her sex and abhors his/her physiological structure. A transgender person is then described as gender dysphoric, meaning someone who is discontented with their sex and does not abide by the gender roles assigned to them according to their biological sex. Therefore, according to Saeidzadeh, non-surgical treatments like hormone therapy and psychotherapy are not deemed to be
58 Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery,”
98.
59 Ibid., 98. 60 Ibid., 98-99. 61 Ibid., 99.
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effective, with surgery being suggested to treat these patients. A consequence of this is the production of a medico-judicial procedure that allows transgender individuals to be certified as eligible candidates for sex reassignment surgery.62
In 1982, Sayyid Abd Allah, a 19-year-old student of medicine at the al-Azhar University in Cairo, contacted a psychologist complaining that he had been suffering from extreme depression, asking for psychological treatment. The psychologist, Salwa Jirjis Labin, examined him and discovered that he suffered from a disturbance in his sexual identity, which he called psychological hermaphroditism (al-khunthā al-nafsīya). She treated him for three years, making all possible efforts to restore a male sexual identity to him; however, she eventually had to give up. She explained the failure as inevitable in cases where treatment is begun after puberty. Therefore, she referred him to Asha Allah Jibr’il to have a sex reassignment surgery performed; however, given the seriousness of the operation, Jibra’il referred him to another psychologist, Hani Najib. Najib soon reached the same diagnosis and argued that this surgery would indeed be the best course. For a year, Sayyid Abd Allah was treated with female hormones while experimenting with dressing up as a woman and living together with the other sex. This stage lasted for about a year, after which Sayyid Abd Allah signed a request to have the surgery performed. This was done on January 29, 1988. The surgeon, Asha Allah Jibra’il, removed the penis and created a new urinal orifice and an artificial vagina, a standard procedure in sex-change operation. According to his psychologist, Sayyid Abd Allah soon recovered, took the name Sally and lives satisfied with her female identity.63
On May 14, 1988, the Doctor’s Syndicate sent a letter to the Mufti of the Republic, Sayyid al-Ṭanṭāwī, asking him for a fatwa on the matter. To sum up, according to al-al-Ṭanṭāwī, it is permissible to perform the operation in order to reveal what was hidden of male or female sexual organs. Indeed, it is obligatory to do so on the grounds that it must be considered a treatment when a trustworthy doctor advises it. However, according to al-Ṭanṭāwī, it is not permissible to do it at the mere wish to change sex from woman to man or vice versa. Lastly, the Muslim must praise God for his or her creation, as either male or female.64
In his analysis of the fatwa, Skovgaard-Petersen argues that this is a difficult fatwa, so vague that both parties cited it in support of their positions. To make sense of the fatwa, Skovgaard-Petersen divided it into five sections. The first part consists of various versions of a Hadith of which the meaning amounts to the argument that there is a cure for every disease, consequently also for the hermaphrodite individual. According to Skovgaard-Petersen, this is a standard introduction in al-Ṭanṭāwī’s medical fatwas. In 1989, he referred to the same Hadith in his fatwa on organ transplantation, which reveals his eagerness to support medical progress as long as it does not infringe on the Islamic moral principles.65
Next, according to Skovgaard-Petersen, al-Ṭanṭāwī discusses those men who resemble women, the mukhannathūn, which Skovgaard-Petersen translated as hermaphrodites and not as effeminate males, which is a more accurate translation of the term. Here al-Ṭanṭāwī has consulted the various Hadiths available on the subject, and one particular Hadith is commented upon: it describes how the Prophet did not forbid the mukhannath from entering the women’s quarters until he heard him describing the women in great detail. Al-Ṭanṭāwī deduces that since there was nothing wrong with the
62 Zara Saeidzadeh, “Transsexuality in Contemporary Iran: Legal and Social Misrecognition,” Feminist Legal
Studies 24, no. 3 (November 2016), 252-253.
63 Jakob Skovgaard-Peterson, “Sex Change in Cairo: Gender and Islamic Law,” Journal of the International
Institute 2, no. 3 (Spring 1995), page numbers were unavailable.
64 Ibid. 65 Ibid.
17
mukhannath until the Prophet discovered that he had been spying on the women, a mukhannath cannot be blamed for being created as such. According to al-Ṭanṭāwī, there are two types of mukhannathūn, those who are born this way, and those who have acquired their manners. Both must be told to abandon it, even if this will be a slow process. According to al-Ṭanṭāwī, they must not indulge in it.66
In the third section, al-Ṭanṭāwī concludes that the condition of the mukhannath is a condition that, if possible, must be cured, and if a doctor asserts that a surgical operation is the only way to cure the condition, then he must go ahead and perform one, be it from man to woman or vice versa. Here, according to Skovgaard-Petersen, he makes an interesting remark, what the doctor should be looking for is a buried female or a covered male nature, which can then be brought to light through the surgery. This amounts to saying that every human being has one true sex which may be covered by limbs or organs belonging to the other sex. According to Skovgaard-Petersen, al-Ṭanṭāwī thus makes a distinction between an outward appearance, ẓāhir, which may be deceptive, and an inward essence, bāṭin.67
Fourth, a Hadith about the Prophet sending a physician to a man to cut a vein is taken as evidence that removing parts of the body through surgery is permitted. Combining this with the notion that the mukhannath must strive to abandon his state, al-Ṭanṭāwī deduces that it is permissible to perform surgery to remove limbs or organs that do not belong to the individual’s true sex.68
Lastly, al-Ṭanṭāwī elaborates on the Hadith according to which the Prophet cursed the mukhannathūn and overly masculine women and expelled one of them from his House. According to Skovgaard-Petersen, this Hadith is not taken to signify a general curse on the mukhannath, but rather a prohibition against performing a sex reassignment surgery at the mere wish. It must be a treatment, curing hermaphrodite individuals by revealing their true sex.69
According to Skovgaard-Petersen, here, al-Ṭanṭāwī is quoting a former Mufti, Jād al-Ḥaq, who issued a fatwa on sex reassignment surgery in response to an inquiry from the Malaysian Centre for Islamic Research in 1981. According to Skovgaard-Petersen, they are not referring to elaborate fiqh discussions of hermaphrodite individuals and the like; rather, they discuss some of the Hadiths on the issue in order to come up with a new ruling on the matter, which in legal terms means that they are practicing ijtihād. According to Skovgaard-Petersen, there are a handful of Hadiths dealing with the matter of the mukhannath, and therefore, one of the first things to decide is which one provides the most general rule. Al-Ṭanṭāwī and al-Ḥaq both focus on the Hadith in which a mukhannath is expelled for having revealed the secrets of the harem, and they conclude that if he had not done this, he would not have been expelled. Based on this, they argue that those who are mukhannath khalqī, meaning by nature, cannot be blamed for it, as long as they strive to rid themselves of this ambiguity. If they move in the other direction, towards indulging in their condition, then they are to blame and must be banished from the social world.70
According to Skovgaard-Petersen, Al-Ṭanṭāwī thus stresses that the correct position for the mukhannath is to be on the move away from this state, that is under treatment. In order to sustain the idea of the mukhannath being on the way either further into or out of his state, al-Ṭanṭāwī maintains the dogma that every human being has only one sex, which is the true sex. In this way, the condition of the mukhannath is reduced to being corporal and psychological movements and manifestations, denying the individuals true sex. Consequently, according to al-Ṭanṭāwī, the task of the doctor will be to identify which of the outwards forms corresponds to the true inner sex, which he describes as hidden, or covered.
66 Ibid.
67 Skovgaard-Petersen, “Sex Change in Cairo.” 68 Ibid.
69 Ibid. 70 Ibid.
18
According to Skovgaard-Petersen, the task of identifying the true inward (bāṭin) essence behind the misleading outwards (ẓāhir) manifestations is well-known to the Islamic tradition as it is also the concern of the mystic, the philosopher, and possibly even the theologian. It is called ta'wīl, a key concept in the Islamic understanding of the search for truth.71
In 2013, the Egyptian Medical Syndicate issued a new Code of Ethics, which recognized Gender Identity Disorder as a medical condition and allowed transgender patients, who were able to prove that they suffered for Gender Identity Disorder, to perform a sex reassignment surgery in Egypt. According to the code, patients must get the approval for sex reassignment surgery from a committee specially set up within the Egyptian Medical Syndicate for this purpose. These patients are required to have carried out relevant medical and hormonal checks, and must have had a minimum of two years of psychiatry at the end of which they receive a report from the psychiatrist confirming that they indeed suffer from Gender Identity Disorder.72
In her research, Serena Tolino adds that in 2003 the prominent Egyptian scholar Yūsuf al-Qaraḍāwī issued a fatwa on sex reassignment surgery after a Muslim woman wrote to him stating that she wished to perform a sex reassignment surgery, asking him for his opinion. Al-Qaraḍāwī started his response by referring to various Quranic verses to demonstrate that everything has been created in pairs, that men and women have been created to live together and that they should marry. He then states that to him it sounds very strange that the sister takes such a position towards men, rejecting them, and that deep inside she feels that she is a man, even though specialized doctors have established that she is a full female and that her sexual system has no anomaly. Therefore, according to al-Qaraḍāwī, there must be profound psychological reasons that must be investigated and then treated by specialized doctors.73
Al-Qaraḍāwī then refers to the hadith according to which God did not send any illness without sending a treatment for it, arguing again that in this case, the treatment should be in the form of psychological help. According to him, sex reassignment surgery is only permitted when there are signs of femininity in an individual that is in his real constitution a man, whose organs, like his testicles or his penis, are hidden in his body, and whose signs of femininity are superficial. According to al-Qaraḍāwī, in this case, the surgery is allowed and even required. However, a complete change of sex in a case that does not amount to this condition is forbidden. He also states that the first consequence of such a change is that it undoubtedly prevents procreation, and if we allow everyone to do so, then procreation will be interrupted, and mankind will come to an end. According to Tolino, with this statement, al-Qaraḍāwī is preparing the field for the use of “blocking the means,” a concept in Islamic law that is used to prevent or forbid something that will likely lead to a forbidden action. He also adds that one of the consequences of allowing sex reassignment surgery would be to make same-sex marriages licit, which he considers one of the most strictly forbidden things in Islamic law.74
Lastly, at the end of his fatwa, al-Qaraḍāwī briefly mentions the case of Sally and concludes that God created the couple, the male and the female, and that He created each of them with their own complexion, and assigned to each of them a function in life, that he or she cannot cancel or hinder. Among the greatest of these roles there are paternity and maternity, and whatever hinders these roles is illicit, because it is a deviation from the innate nature (fiṭra), a divergence of Sharia, an escape from responsibility, and a moral perversion. According to Tolino, his positions shows that for al-Qaraḍāwī, a
71 Ibid.
72 Salma Islam, “The Untold Story of Egypt’s Transgender Community,” accessed June 29, 2019,
https://egyptianstreets.com/2015/07/12/the-untold-stories-of-egypt-transgender-community/.
73 Serena Tolino, “Transgenderism, Transsexuality and Sex-Reassignment Surgery in Contemporary Sunni
Fatwas,” Journal of Arabic and Islamic Studies 17 (2017), 238.
19
person remains either male or female based on their sex at birth, and that a sex reassignment surgery does not change the individual’s innate nature.75
Transgender sex reassignment surgery and homosexuality
A last important aspect of scholarly research into transgender sex reassignment surgery is its relation to homosexuality. Although there is not much written on this subject, it is evident from various studies that there is a connection. Scott Siraj al-Haqq Kugle addresses this by arguing that Muslim communities, like many other communities shaped by patriarchy, often confuse sexual orientation with gender identity. However, he does not explain in what way this is caused by patriarchy, but according to him, it is evident from interviews with gay Muslim men that when they come out, their relatives often think of them to be acting or thinking like women. Similarly, Muslim communities often understand lesbians to be thinking or acting like men. According to Kugle, matters of sexuality are often treated by Muslim families and communities as problems of gender behavior or identity.76
Zaynab El Bernoussi and Baudouin Dupret similarly argue that in Muslim-majority countries, a diagnosis is required to identify the condition of being transgender. In Iran, for example, reports have shown that due to the existing confusion between homosexuality and being transgender, patients unnecessarily undergo sex reassignment surgery. Since homosexuality is considered a crime in Iran, homosexual Muslims and their families feel the pressure to proceed with sex reassignment treatments.77
This is again argued by Farrah Jafari, as she describes the findings of Dr. Bahram Mir-Jalali Mirdamad, who argues that the rate of these procedures in Iran is higher as compared to Europe. According to him, this can be explained by Iran’s authoritative distaste for homosexuality. Jafari then argues that state-sanctioned and religiously approved sex reassignment surgery is informed by an obsession with keeping and maintaining heteronormativity and the distinction between male and female. To support this argument, she describes the experience of a gay Iranian with a psychiatrist. The psychiatrist said that he was a transgender person and that he could easily change. Although the man had told her that he is a man and has feelings for a man, the psychiatrist never used the word “gay,” she just called the man a “weak trans.”78
75 Ibid., 239.
76 Kugle, Homosexuality in Islam, 238.
77 “Sex Reassignment,” Oxford Islamic Studies Online, accessed March 1, 2019,
http://www.oxfordislamicstudies.com/article/opr/t343/e0257.
78 Farrah Jafari, “Transsexuality Under Surveillance in Iran: Clerical Control of Khomeini’s Fatwas,” in Journal
20
Collective Sunni fatwa bodies
This chapter will provide an analysis of the fatwas on transgender sex reassignment surgery published by Islamweb, IslamQA and the Permanent Committee for Scholarly Research and Ifta’ to determine their contribution to the biomedical discussion on transgender sex reassignment surgery.
Islamweb, IslamQA, and the Permanent Committee for Scholarly Research and Ifta’
In 2013, the website Islamweb published a fatwa on sex reassignment surgery. According to Wael Farouq, Islamweb is an Islamic governmental network run by a department of Qatar’s Ministry of Religious Affairs.79 On their website, Islamweb describes itself as designed to enrich the viewer’s
knowledge and appreciation of Islam. It aims to provide for the viewing community substantial knowledge about Islam, particularly for the non-Muslim who may need clarification of common distortions of the media and misrepresentations of ill-informed followers. Islamweb describes its purpose as to increase the awareness of both Muslims and non-Muslims about the mission of Islam to warn mankind for God's punishment, and to give the good news of their salvation in Islam. According to them, Islam is a revealed religion and a way of life that addresses all aspects of the human condition. Islamweb adopts a moderate view, free of bias and extremism. It is designed to address the interest of a wide audience, being casual viewers, new converts to Islam, and Muslims of long standing. According to Islamweb, every effort is made to be as comprehensive as possible and to encompass all aspects of Islam, being the ‘aqīda, Quranic issues, the Hadith, fiqh, the sīra, typical manners of calling to Islam, examples of ideal conduct, stories of new converts to Islam, and many other aspects.80
In 2014, the website Islam Question & Answer published a fatwa on the permissibility of sex reassignment surgery. According to Farouq, IslamQA is a private website, founded and supervised by the Saudi Islamic Scholar of Syrian origin, Muḥammad Sālih al-Munajjid, a member of the Salafi movement. The website has been active since 1997, and it was one of the websites to provide an online fatwa service. It has been censored in Saudi Arabia because it was argued to be competing with the Council of Ulama, the country’s only authority authorized to promulgate fatwas.81
According to IslamQA, their website is designed to be an encyclopedia of Islam. Their mission is described as an academical and educational da’wa website which aims to offer advice and academic answers based on evidence from religious texts in an adequate and easy-to-understand manner, supervised by Shaykh Muḥammad Sālih al-Munajjid. Its aim is described as to spread the Islam and call
79 Wael Farouq, “Fatwas: Mirrors of Islamic Religiosity in Europe,” Oasis [digital version], no. 28 (December
2018), 134.
80 “About Us,” accessed June 5, 2019, https://islamweb.net/en/index.php?page=aboutus. 81 Farouq, “Fatwas,” 134.
