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Transgenders & Endocrinology

Answered as per Hanafi Fiqh by Askimam.org

Asalamulaikum,

 

Respected Ulama, just a friendly reminder that I sent these questions a few months back. I have started my training in Endocrinology and encountered a situation where I was asked to prescribe hormonal therapy for a patient that wishes to maintain their change from male to female, therefore I resent the query below. JazakAllah for you efforts.

Previous Query:

I had a query regarding transgender medicine. I am pursuing a career in Clinical Endocrinology (Hormone Doctor) which includes transgender medicine as a branch. I am currently undergoing my fellowship training and wanted to ask about some Shari issues which I am likely to encounter during my training and career.

 

In transgender medicine patients will request to be prescribed hormones to change or maintain their gender and appearance to resemble a particular gender. This may or may not be consistent with their sex or gender assigned at birth. 

 

My questions are:

 

  1. What defines a persons sex according to Shariah?

 

  1. What is the Shariah basis of gender assigned at birth (What if this is inconsistent with the persons sex according to Shariah)?

 

  1. Is there any situation where it would be permissible to prescribe hormones/medications to modify or to maintain the appearance of a specific gender? And if yes then what are those situations?

 

  1. For example if a person’s gender assigned at birth and their actual/Shari sex is different then would it be permissible to prescribe medication to maintain or change the persons appearance to resemble the gender consistent with their sex as defined by Shariah or gender assigned at birth?

 

  1. What is the definition of a hermaphrodite in Shariah and does that include psuedo-hermaphrodites as well?

 

  1. For example if a person is a hermaphrodite according to Shariah is it permissible to prescribe medication to make their appearance more consistent with a specific gender to improve their acceptance in society?

 

May Allah reward you for your efforts.

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

At the outset we wish to state that Islam does not differentiate between sex and gender when it comes to the application of Shari’ah laws. All laws of Shari’ah applicable to humans are determined by the sex of the individual. Hence, the laws of Shari’ah will differ based on whether an individual is male or female. Hermaphrodite/Intersex persons are an exception to this as will be explained further on.

The following is our current understanding:

Hermaphrodite/pseudo-hermaphrodites/Intersex: “Intersex” is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that does not seem to fit the typical definitions of female or male. For example, a person might be born appearing to be female on the outside but having mostly male-typical anatomy on the inside. Or a person may be born with genitals that seem to be in-between the usual male and female types. For example, a girl may be born with a noticeably large clitoris, or lacking a vaginal opening, or a boy may be born with a notably small penis, or with a scrotum that is divided so that it has formed more like labia. Or a person may be born with mosaic genetics, so that some of the cells have XX chromosomes and some of them have XY. Though we speak of intersex as an inborn condition, intersex anatomy doesn’t always show up at birth. Sometimes a person isn’t found to have intersex anatomy until he or she reaches the age of puberty, or finds himself an infertile adult, or dies of old age and is autopsied. Some people live and die with intersex anatomy without anyone (including themselves) ever knowing.[1]

Transgenderism: “People who identify as transgender or transsexual are usually people who are born with typical male or female anatomies but feel as though they’ve been born into the “wrong body.” For example, a person who identifies as transgender or transsexual may have typical female anatomy but feel like a male and seek to become male by taking hormones or electing to have sex reassignment surgeries.

People who have intersex conditions have anatomy that is not considered typically male or female. Most people with intersex conditions come to medical attention because doctors or parents notice something unusual about their bodies. In contrast, people who are transgendered have an internal experience of gender identity that is different from most people.” [2]

Hereunder are the answers to the various issues raised in your query.

1.     What defines a person’s sex in Shari’ah?

In medical terms, humans have an XY sex-determination system. The Y chromosome carries factors responsible for triggering male development. In the absence of a Y chromosome, the fetus will undergo female development. This is because of the presence of the sex-determining region of the Y chromosome, also known as the SRY gene.[3] Thus, male mammals typically have an X and a Y chromosome (XY), while female mammals typically have two X chromosomes (XX). In humans, biological sex is determined by five factors present at birth. The presence or absence of a Y chromosome, the type of gonads, the sex hormones, the internal genitalia (such as the uterus in females), and the external genitalia.[4]

When referring to creation in the Holy Quran, Almighty Allah confines the creation of humanity to males and females. This means that ‘sex’ has been limited to one of the two. To determine the ‘sex’ of a child, the above mentioned five factors will be considered. Intersex people are an exception to the rule (more details will follow). As the child grows, further characteristics and attributes will confirm the assigned ‘sex’. Males will typically sprout hair on the chin as well as a cracking of the voice making it rougher. Females begin growing breasts as well as experience menstruation. Nevertheless, the Holy Quran confines all humans into either males or females. Consider the following verses,

يَاأَيُّهَا النَّاسُ اتَّقُوا رَبَّكُمُ الَّذِي خَلَقَكُمْ مِنْ نَفْسٍ وَاحِدَةٍ وَخَلَقَ مِنْهَا زَوْجَهَا وَبَثَّ مِنْهُمَا رِجَالًا كَثِيرًا وَنِسَاءً وَاتَّقُوا اللَّهَ الَّذِي تَسَاءَلُونَ بِهِ وَالْأَرْحَامَ إِنَّ اللَّهَ كَانَ عَلَيْكُمْ رَقِيبًا

Translation: “O mankind, fear your Lord, who created you from one soul and created from it its mate and dispersed from both of them many men and women. And fear Allah, through whom you ask one another, and the wombs. Indeed, Allah is ever over you, an Observer.” Surah Nisaa, Verse 1.

فَجَعَلَ مِنْهُ الزَّوْجَيْنِ الذَّكَرَ وَالْأُنْثَى

Translation: “And made of him two mates, the male and the female.” Surah Qiyaamah, Verse 39.

The Shari’ah does not recognise a third sex, nor does it consider a combination of both sexes.[5] The concept of transgenderism is not in conformity with the above explanation.

2.     What is the Shari’ah basis of gender assigned at birth (What if this is inconsistent with the persons sex according to Shariah)?

As stated previously, Shari’ah does not make a distinction between gender and sex. The sex determined at birth will be the gender assigned to the child.

3.     What is the definition of a hermaphrodite in Shariah and does that include pseudo-hermaphrodites as well? For example, if a person is a hermaphrodite according to Shariah, is it permissible to prescribe medication to make their appearance more consistent with a specific gender to improve their acceptance in society?

The following is based on the definitions provided at the beginning of the answer.

The Shari’ah has recognized intersex/hermaphroditism as legitimate medical conditions. The same cannot be said of transgenderism/gender dysphoria. Intersex people are referred to as ‘Kunthaa’ in the Arabic language. Some guidelines have been provided in our Books of Fiqh. Understand that at that time, the idea of ‘sex’ being determined by chromosomes etc. did not exist. As such, the following guidelines were stipulated by the Jurists.[6] The rulings are more applicable to an individual who has developed both male and female genitals.

  • If the intersex child urinates from the male genitals, it will be male.
  • If it urinates from the female genitals, it will be female.
  • If it urinates from both, preference will be given to where it urinated from first.[7]
  • If one still cannot distinguish the ‘sex’, and no other signs point towards its gender, one will have to wait and see as the child reaches the age of puberty.
  • If that person is able to have intercourse with the male genitals then he is male.
  • If the person is unable to have intercourse with the male genitals, but grows a beard, he will be male.
  • If the person is unable to have intercourse as a male, nor able to grow a beard, rather grows breasts like women, then she will be a woman.
  • If breast do not grow, but the person experiences menstruation, then she will be female.
  • If the person does not experience menstruation, nor grows breasts, nor a beard, and is able to have intercourse as women have intercourse, then she will be a woman.
  • If the person does not have intercourse like a woman, nor grows breasts or a beard, then he is a man.
  • If the person experiences wet dreams like a man (i.e. by semen coming from the male genitals), then he is a male.

The Fuqaha mentioned that with puberty, more often than not, the ‘sex’ can be established by the above methods.

However, given that ‘sex’ today is generally defined through the presence or absence of a Y chromosome, the type of gonads, the sex hormones, the internal genitalia (such as the uterus in females), and the external genitalia, different rulings may be applicable based on the differences in sex development. As such, rulings would be based on more of a case by case study.

Once it is conclusively established that a person is a genetic male, then any feminine characteristics exhibited by the body will be considered as a defect. To undergo surgery and hormone therapy to remove the female characteristics will be permissible as one is simply correcting a natural defect.[8] The same applies to an established genetic female exhibiting masculine characteristics.

However, if a specific ‘sex’ is difficult to ascertain due to inconsistencies within a persons genetic makeup, for example, an individual has an extra X chromosome (XXY), or one X chromosome (XO) etc. and no external signs point to a specific gender, a qualified Muslim medical practitioner should be consulted to determine the best course of action.

4.     Is there any situation where it would be permissible to prescribe hormones/medications to modify or to maintain the appearance of a specific gender? And if yes then what are those situations? For example, if a person’s gender assigned at birth and their actual/Shar’i sex is different, would it be permissible to prescribe medication to maintain or change the persons appearance to resemble the gender consistent with their sex as defined by Shariah or gender assigned at birth?

 The following can be used as a guideline when treating patients in this field.

  • It is not permissible to change and alter ones ‘sex’ determined at birth. To do so would be alteration of the creation of Almighty Allah which is prohibited.[9] Accordingly, one cannot treat a patient who has undergone ‘sex reassignment surgery’ to alter a legitimate sex determined at birth. This ruling is applicable to transgenderism/gender dysphoria in which an individual feels he/she is in the wrong body. This is different to the ruling of Intersex people as explained above.
  • If a person has not undergone any ‘sex reassignment surgery’ (i.e. is still of his/her determined ‘sex’), but his/her body is naturally deficient in the hormones required by the body, in such a situation, it will be permissible to prescribe medication and treat the patient to maintain their determined sex and gender.
  • If it is conclusively established that an individual is a genetic male, and the body exhibits feminine characteristics, it is permissible for you to treat the individual to remove the feminine characteristics. Similar will be the case of an established genetic female exhibiting masculine characteristics. Both hormonal therapy as well as surgery (if necessary) will be permissible.
  • If the ‘sex’ of an individual cannot be established and is ambiguous (e.g. XXY or XO), the qualified medical practitioner can choose a course of action he deems fit (after consultation with the individual and their families) and prescribe medication accordingly.
  • It is not permissible to prescribe hormonal therapy and surgery to those suffering from transgenderism/gender dysphoria, as that has more to do with a persons mental state. According to our understanding, people suffering from gender dysphoria are not in the same ruling as intersex people.

We would like to know your observations on our response. You may let us know of your observations or any further query on admin@daruliftaa.net Ref: Bilal Pandor.

 

And Allah Ta’āla Knows Best

Bilal Yusuf Pandor

Student Darul Iftaa

Lusaka, Zambia

Checked and Approved by,
Mufti Ebrahim Desai.

 


[1] http://www.isna.org/faq/what_is_intersex

 

[2] http://www.isna.org/faq/transgender

 

[3] https://ghr.nlm.nih.gov/gene/SRY

 

 

[4] https://courses.lumenlearning.com/boundless-psychology/chapter/sex/

 

تحفة الفقهاء (3/ 357) [5]

والشخص الْوَاحِد لَا يكون ذكرا وَأُنْثَى وَلَكِن يحْتَمل أَن يكون ذكرا وَآلَة النِّسَاء فِي حَقه نُقْصَان بِمَنْزِلَة مَوضِع شجة لم تلتئم وَيحْتَمل أَن يكون أُنْثَى وَآلَة الرِّجَال فِي حَقّهَا زِيَادَة بِمَنْزِلَة الْأصْبع الزَّائِدَة

وَالشَّرْع جعل الْعَلامَة الفاصلة بَينهمَا قبل الْبلُوغ هُوَ المبال على مَا رُوِيَ عَن النَّبِي عَلَيْهِ السَّلَام أَنه قَالَ الْخُنْثَى يُورث من حَيْثُ يَبُول فَلَمَّا جعل الأمارة هَذَا فِي حق الْإِرْث فَكَذَا فِي حق الْأَحْكَام الَّتِي تخْتَص بالخنثى يجب أَن يكون هُوَ الْعَلامَة

فَإِن كَانَ يَبُول من مبال الرِّجَال فَهُوَ ذكر

وَإِن كَانَ يَبُول من مبال النِّسَاء فَهُوَ أُنْثَى وَإِن كَانَ يَبُول مِنْهُمَا جَمِيعًا فَالْحكم للأسبق مِنْهُمَا

وَإِذا اسْتَويَا فِي السَّبق قَالَ أَبُو حنيفَة أتوقف فِيهِ

وَقَالا يعْتَبر الْأَكْثَر فِي ذَلِك ثمَّ إِذا اسْتَويَا فِي الْكَثْرَة والقلة توقفا فِيهِ أَيْضا كَمَا توقف أَبُو حنيفَة

والتوقف فِي مَوضِع عدم الدَّلِيل وَاجِب وَهُوَ الْخُنْثَى الْمُشكل

وَإِنَّمَا يظْهر الْحَال وَيَزُول الْإِشْكَال بِالْبُلُوغِ بِظُهُور الْحيض وَالْحَبل ونهود الثديين ونبات اللِّحْيَة والاحتلام وَنَحْوهَا فَيجْرِي عَلَيْهِ أَحْكَام الذّكر أَو الْأُنْثَى

 

بدائع الصنائع في ترتيب الشرائع (7/ 327)

(أما الأول) فالخنثى من له آلة الرجال والنساء، والشخص الواحد لا يكون ذكرا وأنثى حقيقة، فإما أن يكون ذكرا، وإما أن يكون أنثى

 

الأصل للشيباني ط قطر (9/ 322) [6]

وسألت (9) أبا (10) يوسف عن هذا الخنثى الذي يبول منهما جميعاً معاً (11) ولا يعرف أيهما أكثر إذا أدرك ما حاله؟ قال: إن جامع بذكره فهو رجل. وإن لم يجامع بذكره فخرجت له لحية فهو رجل. فإن لم يجامع بذكره ولم تكن له لحية وكانت له ثديان مثل ثدي المرأة فهو امرأة، وحاله حال النساء. وإن لم تكن (12) له ثديان فرأى (13) الحيض كما ترى (14) النساء فهو امرأة. وإن لم ير (15) الحيض ولم يكن له ثديان ولا لحية وكان يجامع كما تجامع المرأة فهو امرأة. وإن لم يكن له ذلك ولم يكن له ثديان كثدي المرأة ولا لحية فهو رجل. ولو احتلم كما يحتلم الرجل كان بمنزلة الرجل في جميع أمره. وليس يخلو إذا بلغ من بعض هذه المعالم التي وصفت لك

 

المبسوط للسرخسي (30/ 103) [7]

 فإن كان يبول منهما جميعا فالحكم لأسبقهما خروجا للبول منه

 

[8] (تكملة فتح الملهم 5:116)

قال الشيخ العلامة المفتي تقي العثماني: والحاصل أن كل ما يفعل في الجسم من زيادة أو نقص من أجل الزينة بما يجعل الزيادة أو النقصان مستمرا مع الجسم وبما يبدو منه أنه كان في أصل الحلقة هكذا؛ فانه تلبيس وتغيير منهي عنه. واما ما تزينت به المرأة لزوجها من تحمير الايدي او الشفاه او العارضين بما لا يلتبس بأصل الخلقة فانه ليس داخلا في النهي عند جمهور العلماء وأما قطع الاصبع الزائدة ونحوها فإنه ليس تغييرا خلق الله وإنه من قبيل إزالة عيب او مرض فأجازه أكثر العلماء خلافا لبعضه

وَلَأُضِلَّنَّهُمْ وَلَأُمَنِّيَنَّهُمْ وَلَآمُرَنَّهُمْ فَلَيُبَتِّكُنَّ آذَانَ الْأَنْعَامِ وَلَآمُرَنَّهُمْ فَلَيُغَيِّرُنَّ خَلْقَ اللَّهِ وَمَنْ يَتَّخِذِ الشَّيْطَانَ وَلِيًّا مِنْ دُونِ اللَّهِ فَقَدْ خَسِرَ خُسْرَانًا مُبِينًا  [النساء: 119] [9]

 

“My greatest counsel in life is the concept of Taqdeer. I simply submit to the will of Allah. I do not rely on anyone and I do not blame anyone. My focus is only on Allah”-@MuftiEbrahim (Twitter)

 

 

 

This answer was collected from Askimam.org, which is operated under the supervision of Mufti Ebrahim Desai from South Africa.

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