Hamza A.

Dudgeon ©
Iftā & The Science of Transgenderism

“Some say the stronger proof’s preferred, where there’s

A mufti with skill to uncover it.
But in our time there is no preference based
On proof...”1

The 19th century Jurist Ibn ʿĀbidīn wrote the largest encyclopedic text in the Ḥanafī school of Islamic

jurisprudence and was known for codifying the adab al-muftī (literature/code of conduct of a juro-

consult) for the Ḥanafīs.2 His work, especially Sharḥ ʿUqūd Rasm al-Muftī are still being disseminated

at seminary schools, taught and practiced wherever Ḥanafīs are found. In January of 2018, I myself

attended a class on Ibn ʿĀbidīn’s text as part of my own training to become a Ḥanafī muftī. Juro-

consults and their responsa have not typically been the focus of anthropological studies until recently or

studied in Western academia at all for that matter. Most Westerners were not even aware of the word

“fatwa” (responsum) until after the Islamic revolution in Iran and the Salman Rushdie incident.

Typically anthropological studies focused primarily on hermeneutical methodology, or the “making of

a reponsum” but more recent research as highlighted other mechanisms, such as Agrama’s notion that

the responsa should be seen as a way of “self-care.”3 Agrama also highlighted the authority that the

responsa carries in everyday lives of Muslims in Egypt. My initial aim with this project was to

investigate how modern science was utilized in the fatwā, how science affected the construction of the

fatwā, and its final manifestation. What I soon came to realize was that whoever the juro-consult

considered an expert, or whatever field of scientific knowledge he considered authoritative to the

1 Norman Calder, "The 'Uqūd rasm al-muftī of Ibn 'Abidīn." Bulletin Of The School Of Oriental And African Studies no.
2: FRANCIS Archive (2002), EBSCOhost (accessed Dec 13, 2017), 221.
2 Ibid, 217
3 Hussein Ali Agrama, "Ethics, Tradition, Authority: Toward an Anthropology of the Fatwa." American Ethnologist no.
1: 2 (2010). JSTOR Journals, EBSCOhost (accessed June 8, 2018).

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matter at hand had the most impact on the responsum. I argue that there are a myriad of contingencies,

which shape the muftī and his fatwā. I look at three streams of Islamic thought who ultilize bio-medical

science and/or psycho-sexological science as evidence for their different claims, such as a Chicago-

Area Ḥanafī muftī, an Iranian muftī and Muslim Feminist/LGBTQ activists interpretation and response

to reponsa, invoking science to repudiate patriarchy in Muslims.

My interest in Islam and gender started 2011 when I was sitting on the floor of a small mosque,

Masjid al-Farooq4, in NE Minneapolis. I heard a shriek from the women’s section of the mosque, then a

lot of commotion. I hear a door slam. Someone had quickly left the mosque, and there was a lot of

chatter. The mosque’s main daily employee, who worked at the office there, and was also my close

friend, explained to me the incident later. He informed me that a new white female convert who started

to regular the mosque had been kicked out. He leaned closer and with a soft voice explained to me that

the women had noticed this new convert had a larger than normal Adam’s apple. The female

congregants of the mosque came to the stern unanimous conclusion that this individual was actually a

male dressed as a woman, and this violated the female-only sanctity of their space. I was informed the

mosque administration told this person not to return. I remember just feeling bad for this person, bad

for the women in the female section of the mosque, and just overall, bad for the situation. I myself was

a new convert, only having been Muslim for less than a year, coming originally from a Norwegian

Lutheran background. As a fellow convert, I felt sympathetic to this person who had been kicked out of

the mosque. That incident made me more aware of gender/sex and its interaction with Islamic ritual

and culture. One year later I had moved from Minneapolis to Central Minnesota to complete my

4 Now called “Dar Omar Al-Farooq” http://daromaralfarooq.org/

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bachelors degree. Having previously done some seminary studies at The Islamic University of

Minnesota, I also got very involved in the Muslim community in Central Minnesota, which was

predominantly made up of Somali immigrants. Being able to speak Somali, having married a Somali

woman, and been assigned a nominal Somali tribe, I was considered a full-fledged member of the

community there. I remember I went on a trip with two Shaykhs from Central Minnesota to

Minneapolis. One of the shaykhs was of a white convert background and the other a Somali elder. They

started a conversation about the issue of the ‘Mukhanath’ (hermaphrodite) in Islamic law and talking

about a community member whom I was unaware. Realizing I was the newcomer, they started to fill

me in. They explained to me that there was an individual in Central Minnesota of Somali origin who

was born there with ambiguous genitalia. The doctors and community elders were unable to determine

the gender of the baby when it was born. Being that there are different rules based on the male-female

gender dichotomy in Islamic ritual law, the parents wanted to know how they should proceed in raising

their child. Should their raise their baby as a boy or a girl? Naturally, the local Imam was summoned to

give his opinion. The Imam, along with consultation from other community shaykhs, concluded that

this child was a ‘Mukhanath Mushkil’ (ambiguous hermaphrodite). The Imam instructed the parents to

raise the child as a female and when puberty comes, if the other gender becomes more physically

apparent, then at that moment, to raise the child according to the male gender. And that is exactly what

happened, when puberty arrived for that individual, facial hair and male features became physically

apparent. This person changed their ritual gender unveiling the hijab and dawning the thobe quite

literally.5 As I was being told this story by these two shaykhs in a luxury car driving on i94, it dawned

5 The thobe (AR: thawb) is a traditional Islamic garment for men that is a long shirt extending down all the way to the
calf area or ankles, usually covering the arms up to the wrists as well.

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on me. I know this person, this person is my friend. I prayed next to this person in the mosque, and had

many conversations. He always came to the mosque for prayer wearing a thobe and an Islamic skull

cap style kufi. I remember seeing scars on that person’s ears, which at that moment I realized were

from previous having piercings/earnings. I asked him and he had confirmed this story to me. I was

amazed at how accepting the whole Muslim community was of this person, many of them having

known about this controversial predicament. This incident in Central Minnesota along with the incident

in NE Minneapolis sparked an interest for me when it came to Islam law and gender/sex. Having also

grown up with a family member who was openly Lesbian, I wanted to know more about gender,

sexuality, and sex in a general sense.

6 years later and I am pursuing a career as an academic who is still interested in these same

phenomena, a sympathetic curiosity to just be more aware of the people around me. My inquiry has led

me to a man whose life took a similar path to mine in some ways. He is also a white convert who is

pursuing a career in academia, or shall I say he is quite established already in Academia. Scott Siraj al-

Haqq Kugle who is a professor of South Asian and Islamic Studies at Emory University who

specializes in Sufism and issues of gender and sexuality in Islam. He is openly homosexual, Ḥanafī,

Chistī, and identifies himself as “the first Muslim to publish widely on the issue of homosexuality and

transgender identity in Islam.”6 Colored by his academic background he argues in his book that, “A gay

or lesbian Muslim is no less than a heterosexual Muslim, except by the intangible criterion of pious

awareness of God (taqwa). A transgender Muslim is no less than other Muslims who have not struggled

with their own gender identity and faced the stigma of changing gender classification, except by

6 Scott Siraj al-Haqq Kugle, Homosexuality in Islam: Critical Reflection on Gay, Lesbian, and Transgender Muslims
(2013; reprint, London: Oneworld Publications, 2010), back cover.

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awareness of God.”7 While Dr. Kugle is himself not transgender, he interviewed many transgender

people in the process of writing this theological book and presents indigenous arguments from the

Muslim LGBTQ community in North America and Europe.8 He analyzes Islamic responsa (fatāwā)

literature regarding transgenderism and argues for the acceptance of transgenderism from the

‘traditional’ Islamic viewpoint.9

My main interlocutor, whom I will refer to by the pseudonym “Zeeshan,” is a Muftī of the

Ḥanafī school of fiqh (jurisprudence) in the greater Chicago area whom I interviewed May 15th 2018.

He is part of an organization based in the Chicago area called The American Fiqh Academy (AFA),

which “is a registered non-profit dedicated to academic research on contemporary juristic matters

facing the American Muslim community by applying principles established by expert Muslim jurists

(fuqaha), as derived from the Quran and Sunnah, within the framework of the four established Sunni

schools of jurisprudence.”10 AFA published a responsum (fatwā) entitled “Male, Female, or Other:

Ruling of a Transgender Post Sex Change Procedures,” to which my interlocutor Zeeshan was a co-

author.11 I wanted to understand how the interaction with science affected the methodology, and

ultimate outcome of a fatwā. Therefore, I began with the most basic question, getting to the nitty gritty:

7 Ibid, 1.
8 In other words, Dr. Kugle did a significant amount of ethnographic footwork, which informed Homosexuality in Islam.
He wanted to publish both the ethnographic interviews and the theological arguments as one work, but could not find a
publisher who would do that. Therefore, after some time his ethnographic interviews were published in Living Out
Islam (NYU Press, 2013).
9 I understand that the use of the word “tradition” or “traditional” can be quite problematic to define. My aim here is not
to define these terms, but I am using it here in quotes to highlight their problematic nature, and am trying to emphasize
the way Dr. Kugle envisions his own arguments.
10 “About Us” section, American Fiqh Academy. http://fiqhacademy.com/about/ (Accessed: 6/8/2018).
11 Abdul Azeem Khan, Abdullah Nana, Abrar Mirza, Sohail Bengali & Suhail Tarmahomed. “Male, Female, or Other:
Ruling of a Transgender Post Sex Change Procedures,” American Fiqh Academy. http://fiqhacademy.com/res03/
(Accessed 6/8/2018).

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Hamza: When do muftīs need to take science into consideration when answering a question?

Zeeshan: There are certain things in Islamic law that are purely based off the naṣṣ (text) where any modern
developments whether they be in science or any other field have no relevance whatsoever. For example, the
laws of Zakāt (wealth tax/charity), you know… All the ʿibādāt (acts of ritual worship) for example, right?
And even in the muʿamalāt, interactions between Muslims when you have financial laws such as the
prohibition of ribā, of interest, these things have nothing to do with science. There are other things where the
ruling is based off of a certain medical understanding, and as medical understanding changes that will make
an impact. For example if you look at a lot of the books of fiqh, of jurisprudence, they talk about how if
something were to be inserted into the male or female front private part while fasting, that it would break the
fast and their rulings were based off the understanding that there was a passageway from the front parts
toward the stomach and the intestines like there is a passageway from the back to the colon and such, right.
Now as science progressed in that sense, medicine proved that no, actually there isn't such a passageway, then
because that specific ruling was not based on a ḥadīth of the Prophet ‫ ﷺ‬or such, rather it was a ruling based
on science and medical understanding, then the ruling changed based off of the development in medicine. So
now, ʿUlemāʾ say that if a woman, for example, were to go for a pap smear or some other exam or something
would be inserted into the front private part, none of that has any impact on one’s fast. Although, some of that
may seem contrary to what you are going to find commonly mentioned in the books of fiqh. But there, you
have to understand that this was when a ruling was based off of a medical understanding and the medical
understanding has changed. It depends really on what the actual masʾala (issue) and the actual matter at hand
is.

Zeeshan saw certain issues as having always been based off of a ‘medical understanding’ or off of a

scientific understanding since they were formulated in the medieval era. As scientific/medical

knowledge changed, the issue, and thus the ruling, would change along with it. The example he gave

about the sexual organs, which were previously thought to be connected to the digestive tract, are,

according to contemporary medical understanding, no thought to be connected to the digestive tract,

and therefore does not break the fast. As the underlying ʿilla (ratio legis) was for a substance which

reached the digestive tract would break the fast. Since medical understanding now proves there is no

connection between the front private parts and the digestive tract, no substance entering the front

private parts would break the fast.

The fatwā issued by the AFA states:

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“Medicine defines a sex based off the presence of the Y chromosome in an individual; men have a Y
chromosome, whereas women do not. The Sharia accepts this definition, as long as the external genitalia do
not indicate to the contrary at birth, such as in the rare cases of Androgen Insensitivity Syndrome, where
external female genitalia develops despite a Y chromosome, in which case medical doctors also classify the
baby as a female despite a male genotype. Moreover, it is important to note that medicine and, more
importantly, Islam define sex as either one of two: male or female. The Quran, when referring to the creation
of humans, limits the creation to men and women, in pairs, and that individuals fall in one of four categories:
those granted daughters; those granted sons; those granted both; and those granted neither. The Sharia
recognizes neither a third sex nor a combination of both sexes in one individual."12

When looking at other responsa in the Islamic tradition, we do not find this characterization of gender

always present, as is the case in Iran demonstrated by Dr. Najmabadi’s studies, where there is

considerable influence by psycho-social experts.13 I then naturally asked Zeeshan:

Hamza: To the muftī, what is considered as scientific knowledge? Scientists amongst themselves may
disagree with each other and say one field is pseudoscience, or its not real science or true science, so as a
muftiī who is not a scientist, how would you sift through that?

Zeeshan: I think the muftīs will refer to an expert in a particular field where the need calls for it. Like we
mentioned those rulings that are purely based of a verse of the Quran or ḥadīth and such, then an expert he
may consult are in the field of Quran and Sunna. If there are certain rulings that are based off of medicine,
then the muftī will reach out to the expert in that specific thing. Even then in certain cases he may need to
reach out to an endocrinologist, for example in certain cases, not a podiatrist, but a very specific doctor based
on the issue at hand. In other cases, for example, where its a mater of Zakāt on a certain type of investment
account, he may reach out to an investment specialist. If its an inheritance issue related to a certain type of
estate matter, he may reach out to a lawyer on that. So the muftī always reaches out to an expert in the field
that he needs some further insight into. The whole aspect of whether is science or pseudoscience, it doesn’t
really … it doesn’t … he is not necessarily overly interested in that, that doesn’t necessarily pertain to him as
long as he finds the expert in the field that he needs to consult someone, then that is all he needs.

Hamza: Does he only need to consult one expert, or more than one?

12 “Male, Female, or Other”

13 Afsaneh Najmabadi, "Verdicts of Science, Rulings of Faith: Transgender/Sexuality in Contemporary Iran." Social
Research no. 2: 533 (2011). JSTOR Journals, EBSCOhost (accessed June 8, 2018); Afsaneh Najmabadi, Professing
Selves: Transsexuality and Same-Sex Desire in Contemporary Iran (Durham and London: Duke University Press,
2013).

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Zeeshan: No, generally speaking, he will consult more than one, so at least usually two or three opinions on
the matter at hand, depending on what those two or three say – if they give him slightly different answers,
then he may talk to more. Basically he needs to get some iṭmaʾnna (feeling of ease) about it, some peace of
heart that he has spoken to the experts and has gotten the expert opinion. So any time you can get two people
minimum to say the same thing, then he knows.

Hamza: Would a muftī ever consult a naturopath or a traditional ḥakīm for a medical issue? Or is it only
going to be someone trained in Western science?

Zeeshan: Its hard to say on a very hypothetical basis because its… for example, if its a matter where he needs
an opinion on biology, like we gave the example of the passageways of the bodies, he’ll go to somebody who
is an expert in the body. If the question to him is whether a certain medicine is permissible to use? Then he
will find the right person to find out about that medicine, and how its made and produced. If that medicine is
made by somebody who practiced naturopathy and such, he may consult that person. He may also consult a
chemist, depending on the case in need. A muftī is not overly interested in the different categories of science
and the different views on those, its not even so much that he is even interested in the classifications of
science, its more that he needs to find the expert on the matter that he is consulting on… the muftī won’t give
preference to one type of medical practice over another.

Hamza: Different cultures, if they have different ideas about medicine, maybe the muftī would go with that
what that culture decides medicine is, is that what you are saying?

Zeeshan: If the medical treatment that a person is pursuing is valid medical treatment, in the U.S. lets say, the
normal medical route is the mainstream, the normal, naturopathy is kind of like the alternative, the muftī is
not going to say, “take this alternative medical route!” Likewise, if it was a different culture and a different
country and naturopahy and the ḥakīm were the norm, and the medical sciences were the less used, and that
was more the “Western” or the “foreign” medical treatment, same way. The muftī is not going to say you
must leave that ḥakīm and go to that doctor. Its not his job to determine what is the better medical treatment.

Hamza: Is there anything which might disqualify that person from being an expert or being reliable in their
knowledge?

Zeeshan: There are two types of things that you would take, one is general information that you need and
there is a lot more leeway in that. So as long as you feel confident that the person will give you right and
correct information, then you can take it from whomever. If its a matter with a direct sharʿī (legal) impact –
should this person fast or not based off their medical health conditions? Should this person fast or not fast? –
where there is a direct impact on a person’s ʿibādāt or such where there is a direct impact on a Sharia ruling,
then in that case they [muftīs] will generally want to ask a Muslim expert in that field, just because a Muslim
has that appreciation and understanding of Sharia. That person understands what it means to not fast
Ramaḍān. A non-Muslim may not necessarily have that same appreciation.

What is discernible here, is that the muftī, in the American context, easily chooses according to his own

knowledge and skill-set who is an expert in a certain field, whether it be a modern scientific field or a

field outside of the hard sciences. It is constrained to what the muftī deems as ‘normative’ in the

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culture. In the adab al-muftī literature of the premodern era, there seems to be no clear cut

methodology in place to determine who is an expert in a certain field or on a specific issue, and in the

modern era, Muslims have not codified a normative response yet. Perhaps, there is no need or desire to.

Islamic law has always thrived on diversity and a plethora of normative opinions on fiqh issues. Elham

Mireshghi points out that, “because of the plurality of jurists, every legal question can have multiple, at

times, conflicting responses. These responses are just as dependent on the jurists’ understanding of the

legal problem as they are on the interpretation of the legal sources. Therefore, understanding how

fatwas are formulated and in response to what problems and why, is a thoroughly anthropological

endeavor.”14 “The development and framing of legal questions, the communication of the problem to

the jurist, the process of negotiation, and persuasion by invested actors as well as the publication and

dissemination of that fatwa” and, as I argue, who the muftī decides to consult as an expert all have a

major impact in the outcome of a fatwā.15 In Iran we find that the muftīs are aware of and in contact

with medical experts, various religious experts, psychologists, criminologists, etc.16 Clerics in Iran have

to make “concrete statements that would inform policy” in matters pertaining to the state.17 Unlike in

the American context, muftīs’ responsa in Iran are influenced by what Mireshghi calls the “citadel

effect” and the contingent multifarious factors involved in their (responsa) construction, and also “how

formal jurisprudence reasoning and methodologies can be subject to change as the elements of a fatwa

assemblage are shifted and their relationships reconfigured.”18 Without the bureaucratization of the

14 Elham Mireshghi, “Kidney Sales, Policy, and Islamic Law: Rethinking the Anthropology of the Fatwa.” Under review
at American Ethnologist.
15 Ibid.
16 Najmabadi, "Verdicts of Science, Rulings of Faith,” 535.
17 H.E. Chehabi, "How Caviar Turned Out to Be Halal." Gastronomica no. 2: 17 (2007). JSTOR Journals, EBSCOhost
(accessed March 30, 2018), 21.
18 Mireshghi, “Kidney Sales, Policy, and Islamic Law”

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Iranian state, American muftīs are often the primary actors and engagers in discerning who is an expert

and reaching out to them, which is nearly opposite to Iranian muftīs in most cases. The AFA defines

sex as being contingent on the presence or absence of the Y chromosome and that any sort of sex

reassignment surgery, or hormone therapy does not change the presence of a Y chromosome, and

therefore does not change the sex of the individual. They claim this is based on modern medecine and

so naturally I asked:

Hamza: It says in your fatwā that “Medicine defines a sex based off the presence of the Y chromosome in an
individual… and the Sharia accepts this definition,” how does the Sharia accept that definition?

Zeeshan: The Sharia recognizes that everyone is either born as a male or a female. There is no concept of a
third sex in the Sharia. Generally speaking, based off the primary genitalia, when a child is born, the Sharia
will recognize if the person is a male or a female. There are certain cases where a child will be intersex or is
born with ambiguous genitalia, then in that case the Sharia wants to know or wants to determine what is the
sex of that child. It can’t be both and can’t be neither. Its one or the other. So the goal of the Sharia there is to
associate a sex with that child. Now in the simplest of manners, in the sense that without access to any other
means of determining, the jurists recommend certain ways that a person can help determine. For example if
the child has ambiguous genitalia, but one of the ones is used primarily for urinating, so that is a sign that that
is the dominant one, that is the primary one. The goal there is that this isn't the method innit of itself of
determining the sex, its that in the scenario where you can clearly tell immediately then you are going to look
for any supporting evidence to determine which sex the child is. Now in the case where you have access to
medical information, in the sense that the doctors can look at the chromosomes and say that this person is
born with this ambiguous genitalia, but we have this definition in science that the sex that matches the
obvious all the time and in this case this person who has this ambiguous genitalia, we can tell that based off
their DNA or their chromosomes, their genotype and such, that this person is a male or a female, then the
Sharia doesn’t have any objection to that. The Sharia is not going to disqualify that as any sort of a valid
evidence to help determine. Thats a valid valid evidence that can be submitted to determine the sex of the
child.

Hamza: So the understanding in pre-modern times where they looked at the genetalia was because that was
the only method they had?

Zeeshan: Yea, I mean that is generally… again, in the lack of access to other forms of evidence to help
determine what the sex is, then you would use whatever type of evidence you could get. You could look at
what type of genitalia does the child use more dominantly. So then you use that as supporting evidence
towards one of the two possibilities. If science and doctors, and medical blood tests can be used as sources of
evidence, then the Sharia has no objection to it.

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Hamza: Biology seems to be the main field that the authors of the fatwā consulted when it comes to gender,
why not psychology?

Zeeshan: So the resolution differentiates between gender and sex, but there are more things involved when we
talk about gender. And so for example, there may be social and cultural aspects, there could be cases as to
someone’s psychological state as to what they chose to identify with, whereas sex is a medical… its more
factual in that sense that a person is either born male or they are born female. And the Sharia says that a
person’s sex isn’t one that you choose. Its very factual, a person is born, and they were either born male or
they were born female. Regardless of whether they want to act, dress or otherwise psychologically identify
with. The Sharia recognizes that there are medical or psychological issues such as gender dysphoria where a
person may feel inclined towards an opposite sex and not their own, but that is a psychological matter. It does
not change the fact of what sex that person actually is. With sex reassignment surgery the fact is about does
that person’s sex actually change? And the answer is that person’s sex does not and can not change. What
they chose to identify with can change. And thats up to them, and it can change as often as they want for that
matter. But the actual sex that that person is born with, that cannot change. Neither according to the Sharia or
medically. It can’t change.

Hamza: So gender is seen as something that is totally separate from sex?

Zeeshan: Yes.

Hamza: Sex is something that is merely biological?

Zeeshan: Yes. What we are talking about is a person biologically male or female and biologically can that
person change to the opposite sex. Because there are a lot of Sharia rulings that are associated with each sex.
So we can’t just talk in hypotheticals if the person just wants to identify with the opposite sex. There are
Sharia rulings that are associated with all kinds of issues, whether its inheritance, prayer, … in a lot of
different cases Sharia rulings are different in certain cases for men and for women. And those are based off of
that person’s sex that cannot and does not change. Sharia has cases where one thing can change into
something else completely. You have the case of istiḥāla (transmutation) where one thing completely changes
and transforms into something else. So you have the classic example of wine turning into vinegar. But even
after a sex change procedure or even with the hormone therapy, there really is no changing of that sort.

Hamza: Psychologists will argue that people with gender dysphoria, their brain structure is that of the other
gender and in that sense biological. How would a sunnī muftī understand that?

Zeeshan: I mean, we see that a person can have certain psychological inclinations and such whether they’re
truly from birth or other instances, even if you assume they truly are from birth, thats fine, we say people can
have that, people argue the same thing for homosexuality, certain people… I think studies have also shown
that peoples inclinations towards certain violent crimes may be there, but that doesn't justify what actions they
wish to take because of that. That person has a psychological condition that leads that person towards acts of
violence or homosexuality or whatever the case might be, even if we assume that person was born with that
mindset, it doesn't justify what they want to do because of that. In the Sharia we understand that this world is
a place of tests and trials and the hereafter is the world of rewards, so different people have different
challenges as we understand that. It may include people with violent inclinations or an inclination towards
other forms of immorality or what the Sharia considers corruption, or inclined towards the same gender or
that they themselves are a different gender or a different sex. What the Sharia says is that if that is a persons
test in this life, it cannot justify fulfilling the desires that that mindset is bringing about.

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I then proceeded to ask Zeeshan about the mukhanath, and whether or not somebody whose psyche

identifies with the gender opposite of their biological sex could be a type of mukhanath, or if that fiqh

category was only for people with ambiguous genitalia. He proceeded to explain that the issue of the

mukhanath is about tabyīn al-jins (clarifying of the sex) and not about tabdīl al-jins (replacing/changing

the sex). It is uncovering the state that one was actually born in. He also stressed that the likelihood of

somebody have a child with ambiguous genitalia was extremely rare and this is a very hypothetical

situation. When I asked about the case of an individual who was for sure undoubtedly clinically

diagnosed with gender dysphoria, and how they were supposed to live their life as a pious Muslim?

Zeeshan emphasized that MtoF and FtoM transgenders don’t always have the sexual orientation we

might expect, and we have to be aware of that, but we cannot make something permissible that is

forbidden for them. They cannot live their life fulfilling their sexual desire for somebody of the same

biological sex. He also mentioned the example of cisgender homosexuals, where they are tested with

inclinations that they must hold back and cannot fulfill or act upon their sexual desires. He reiterated

that we cannot make something permissible that is forbidden. He stated that Islam is all about

submitting to God and putting our ego and personal desires to the side, because we will be rewarded in

the Hereafter for that.

In contradisction to the AFA’s responsum on transgenderism, Iran’s revolutionary leader,

Ayatollah Khomeini’s reponsum came to the exact opposite conclusion. Rather Khomeini allowed the

sex change procedures for transgenders comparing it to surgery done on the hermaphrodite to

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incorporate the individual into one of the two sexes.19 This is made possible through the interaction of

Iranian jurists with other types of scientific experts than the AFA. Later Shiʿī scholars like Kariminia

would emphasize that taghyīr al-jins (chaing of the sex) primarily meant changing the gender, the jinsi

apparatus and not the biological sex.20 This was informed by biomedical and psycho-sexological expert

discourse on transsexuality and transgenderism. The field of psychology in Iran goes back further than

most Muslim majority countries and was Islamicized in the early 20th century.21 Using the classical

Islamic understanding of psychology known as ʿilm al-nafs (knowledge of the ego) and its persian

cognate ravanshinasi, Iranian psychologists were able to present psychology to the Iranian clergy in a

lexicon they could easily and readily comprehend and accept.22 Transgenderism was presented in

Islamicized psychological terms as a discordance between the soul and the body seeing gender

dysphoria as a type of hermaphrodism.23 Many Iranian jurists also take into consideration the

documented high rate of suicide amongst transgenders who are not allowed to live freely in their

identity or get sex reassignment surgery/hormone therapy, and thus allow it based on ḍarūra

(necessity).24 Even Iranian jurists, by the same logic, allowed transgender people who have not

completed their transition to cross dress as long as the purpose of it it is to cure their condition and as

long as they are not engaged in same-sex-playing.25 Although transgenderism is permitted under strict

bureaucratic control by the Iranian state, same-sex-playing is strongly forbidden. Here transgender

people are viewed according to their biological sex, where Kariminia recognized sex as being

19 Najmabadi, Professing Selves, 174-175.

20 Ibid.
21 Ibid, 189
22 Ibid, 189-191.
23 Ibid, 190.
24 Ibid, 180.
25 Ibid.

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determined by genitals, chromosomes, and other medical evidences. In his view, transgender

individuals should not be engaging in sex with other people who are of the same biological sex (i.e.

sharing the same genitals, and/or chromosomes).26

LGBTQ Muslim activists and Muslim feminist activists have long repudiated the juristic

postulations mentioned above. They used their knowledge of Islamic law literature, Islamic responsa,

and science to form their own conclusions. Although, it is completely acknowledged by these activists

that this is an entirely new assertion and phenomenon “without precedent in Muslim history.”27 As we

seen with both the Chicagoan jurist Zeeshan, and the Iranian jurist Kariminia, both had a narrow

definition of sex when it came to sexual actions, limiting the definition of sex to a biological one,

interacting with only the scientific field of biology, while not recognizing the relevance of other fields

of scientific inquiry as relevant. Despite the fact many Muslim clergy, such as Dr. Tim Winter (a.k.a.

Abdal-Hakim Murad) accepting same-sex desire (however sex may be defined) as being potentially

innately biological, they all do not think the Sharia allows these same-sex desires to be acted upon.

“The only religiously acceptable option for someone with a homoerotic orientation is permanent

Chasity: Murad sees it as a test from God.”28 Murad like many Muslim jurists accept that opposite-sex

desire is natural and divinely originated. They also acknowledge that long term abstinence from sexual

acts will in all likelihood fail for most individuals and they will commit transgressions. They therefore

encourage licit marriage. LGBTQ and feminist activists have argued that for people who have same-

sex desires, which are “neither freely chosen nor inherently blameworthy, but can have no licit

26 Ibid, 181.
27 Kecia Ali, Sexual Ethics and Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence. Expanded and Revised
ed. (London: Oneworld Publications, 2016), 99.
28 Ibid, 109.

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satisfaction, then one is left with the untenable stance that those who desire a satisfaction that cannot be

obtained through licit means are, through no fault of their own, destined to choose between a celibate

life devoid of sexual gratification and one of sexual release obtained through a sin.”29 Kecia notes that

for transgendered individuals, the danger is “less about biological sex than about sexuality and its licit

exercise.” It is the refusal of those to reclassify sex as being something, which can be changed, instead

of regarding changes as only mutilation, that is dangerous to transgendered people. The aforementioned

Scott Kugle would agree with all of these notions purported by Kecia Ali, and his book Homosexuality

in Islam is oft cited by Ali. Kugle states that “Rapid changes in society under the impact of modernity,

along with advances in scientific knowledge in fields of psychology, sociology, and genetic biology,

make reassessing the classical Sharia a vital necessity.”30 Like many Iranian jurists, Kugle accepts the

Islamicized psychological understanding of the soul/nafs/psyche, and he states:

“The soul is an awareness more than a substance. It is a consciousness rather than a thing. It is the identity of
the person who is animated by the spirit of God’s merciful breath of creation. As an identity, it is self-
reflexive – it is that part of our personality that says “I” and bears all the scars of such egoism. As an identity,
it recognizes a name, perceives an individuality, and accepts culpability of the actions of the body. It
organizes the parts of the body into a single being, a self. In that sense, the soul as an identity can be said to
have gender. The soul, reflecting on the body, perceives itself to be female or male, or possibly both-male-
and-female or neither-male-nor-female.”31

29 Ibid, 111.
30 Scott Siraj al-Haqq Kugle, Homosexuality in Islam, 6.
31 Ibid, 237.

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Kugle sees gender as not inherent in the body and not determined by the anatomical parts of the body.

He accepts nearly identical definitions as Zeeshan stating:

“Sex refers to one’s anatomical genitalia, through which one is classified male or female. Gender refers to
one’s expression of social behavior organized by gender norms, through which one is classified as masculine
or feminine. Sexuality refers to one’s own consciousness of sexual desire and expression of intimacy and
pleasure, which includes not just one’s sexual orientation but also more subtle issues of degree of sexual
desire, its intensity, and its focus.”32

Kugle admits that the terms transsexual, one who changes their physique via sex change surgeries or

hormonal treatments, and transgender, one who manifest the identity and behavior of the opposite

gender from their anatomical sex, are both products of “recent innovations of the modern disciplines of

sociology, sexology, and clinical medicine.”33 He goes on to iterate that these categories only become

possible because of the medical techniques that are used to engineer the physical transformations

transgender people need to become transsexual, often to the point of passing for the gender they

associate with. This new reality for people who are born with gender dysphoria raises profound

challenges to all religions “that were formed and formalized in patriarchal societies.”34 Building upon

the Islamicized psychology that both Kugle and Kariminia utilize, Kugle takes it a step further stating

that, “Spirit is one of the only Arabic nouns that can be either masculine or feminine in gender, just as

its ambiguous nature partakes of both lofty divinity and corporeal humanity by infusing the body with

life and the soul with awareness.”35 Kugle repudiates patriarchal appeals to biology stating that,

32 Ibid, 239.
33 Ibid, 240-241.
34 Ibid, 243.
35 Ibid, 244.

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“Modern biology has discovered that mating behavoir in many animal species is far more complex than

patriarchal dichotomies between male and female can explain. In some species, an individual actually

lives for a while as a male before transforming into a female, so that each individual effectively lives as

both genders for a time. In other species, a single individual can be both male and female at the same

time.”36 Siraj al-Haqq Kugle also repudiates patriarchal appropriation of the chromosome argument

highlighting that while an individual is born with certain chromosomal patterns, genitalia can manifest

in opposite ways or in hermaphroditic ways, which release hormones contrary to their chromosomes.37

Throughout his book, Kugle tries to challenge patriarchal Quranic hermeneutics emphasizing that

“scientific knowledge and medical research can reveal to us the deeper patters of God’s creation,” and

that “New discoveries in biology, physics, and other sciences goad us into a deeper interpretation of the

Qur’anic metaphors of gendered pairs. A more nuanced reading of the Qur’an can in turn goad us into a

more sensitive attention to the lives of real people.”38 Kugle researched an incident in the 80s where a

student of Azhar, named Seyyid, who was transgender, completed sex change surgery becoming Sally.

Sally who now possessed female genitalia tried to gain readmission to Azhar to finish her academic

program, but was denied readmission because Sally’s appearance violated its policy of strict gender

separation. The Azharī administration saw the issue of gender identity as primarily a concern to forbid

homosexual intercourse. They concluded that Sally was neither fully male, nor authentically female,

having mutilated the body in order to justify homosexual intercourse. Because the incident received

such wide publicity the Grand Muftī of Egypt, Tantawi, was obligated to do research on the issue. He

issued a fatwā allowing Sally to be readmitted into Azhar as a woman, and then equivocally made the
36 Ibid, 246.
37 Ibid, 247.
38 Ibid, 248.

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pronouncement that “It is permissible to perform the [genital reassignment] 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.”39 Although many trans activists saw

this as progress, they are still disheartened by Tantawi not acknowledging explicitly the self-reported

experience of the overwhelming vast majority of transgender people by insisting that they have a

corporeal disease that needs to be removed via an operation.40 Transgender people express the idea that

they are not transgender because of any anatomical ambiguity, but rather “because of the psychological

reality of feeling like a man trapped in a woman’s body. This is the case for the vast majorty of

transgender people who desire medical treatment to adjust their bodies to be in harmoney with their

minds and/or souls.”41 Despite the fatwā from the Grand Muftī of Egypt, Azhar did not acknowledge

Sally’s new gender, stating that “She was not a full man, definitely not a woman, and not a true

hermaphrodite.” Kugle claims that Azhar is asserting Sally is a voluntary eunuch, a victim of merely

self-inflicted castration.42 When it comes to transgenderism in Iran and Egypt, Kugle concludes:

“These recent juridical decisions in Egypt and Iran focus on the medical technique of sex-realignment surgery
and the subsequent gender fit of those who undergo its ardors. They are concerned mainly with the stability of
gender-binary Islamic society and give little or no consideration to the human being who suffered before the
operation and may continue to endure stigma and marginalization after it. Without openly and
compassionately acknowledging that gender identity exists independently of anatomy and sexual orientation,
Muslim jurists will never do justice to the experience of transgender Muslims.”

39 Ibid, 260-261.
40 Ibid, 262.
41 Ibid.
42 Ibid, 236.

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What these three streams of Islamic thought, The Sunni Chicagoan Mufti, the Iranian Muslim Jurists,

and the feminist/LGBTQ activists, show us is how science is being utilized in responsa literature in

new and unique ways, especially in the areas of bio-medical science and psycho-sexological science.

We see how with my interlocutor Zeeshan, a definition of sex in purely bio-medical terms was utilized

to repudiate pyscho-sexological claims to scientific expertise in defining sex. Kariminia also utilized a

narrow definition of sex according to bio-medical science only when it came to same-sex-playing, but

not when it came to gender change itself. Feminists and LGBTQ activists and Muslim thinkers

actively purported the psycho-sexological definitions of gender and identity to shed a more broad light

on transgender issues. Regardless of which stream of Islamic thought one may adhere to, the undoubted

reality that is brought apparent to the forefront and discernible, is the reality that Islamic responsa,

especially when they interact with science, are propped up by countless contingencies. How the jurist

may frame questions in his own mind, or how questions are presented affects how the jurist will

proceed in contacting scientific experts related to the inquiry. The societal contextualizes shape who

muftīs consider as scientific experts and which experts he/she can interact with/contact, or who they

should contact for that matter. What information they receive from said experts can have drastic and

dramatic outcomes in the responsum. Moreover, science is being utilized to repudiate what are

perceived as patriarchal tendencies in Muslim jurists’ responsa. Although this small study barely

scratches the surface of the dialogue currently going on in Islamic jurisprudence in regards to science,

responsa, and transgenderism, much more needs to be done. Besides bio-medical or psycho-social

sciences, what other sciences are Muslims in various contexts utilizing to shape their arguments or

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epistemological in their respona literature? How is the classical fiqh category of mukhanath being

reconstructed to fit modern scientific notions? Etc.

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