Abstract:
Islamic Fiqh (Jurisprudence) largely governs the lives of transgender and intersex individuals in the Middle East and North Africa region. Since early Islamic times, scholars have developed distinct Fiqh on non-binary gender/sex identities, categorizing them into social identities such as Mukhannathun and biological identities such as Khuntha. The treatment of these identities differed, as most scholars agreed that social identities should not be accepted and that individuals belonging to them should be called upon to repent and return to their binary assigned sex at birth. Meanwhile, biological identities were seen as a creation of Allah that humans should not object to. Therefore, biological identities were somewhat more accepted, with specific Fiqh rules developed for them. However, this acceptance was limited, as individuals were still expected to adhere socially to one of the two binary sexes. In modern times, the issue of non-binary gender/sex identities resurfaced with advancements in medical treatments that allow individuals to transition to a sex other than the one assigned at birth. Scholars aiming to maintain the social-religious binary sought to regulate the matter by examining the medical necessity for both social identities (i.e., transgender) and biological identities (i.e., intersex). All scholars treated both identities as individuals with illnesses, whether mental (for transgender people) or biological (for intersex people). As Muslims must seek cures for their illnesses, scholars began examining potential treatments. In the end, the majority concluded that transgender individuals, who are already biologically within the binary, do not have a medical necessity to undergo gender-affirming healthcare and should instead be directed towards therapy to address their mental disorder. For intersex individuals, sex reassignment surgeries were seen as an ideal way to align them with the binary and assign them their actual socio-religious sex role. This modern Fiqh, with its various interpretations, serves as the basis for how laws and policies interact with transgender and intersex individuals. Many countries have banned gender-affirming healthcare and promoted conversion therapy for transgender individuals while forcing intersex individuals into sex reassignment surgeries to assign them binary sex medically. This paper investigates the development of modern Fiqh through the analysis of 17 Fatwas issued from the 1980s to the present day. It aims to establish the Fiqh principles scholars used to reach these judgments and outlines how these Fatwas are reflected in practice through codified law and policy or legal precedents in the region’s case law on legal gender recognition.
