Jurisprudential Rulings and Social Rights of Intersex and Transgender Individuals
Authored by: Maulana Musharraf Baig Ashraf◈ Distinction Between Two Concepts
Islamic jurists have established clear criteria for determining Khuntha (intersex). Once an individual is confirmed to be intersex, leniency is observed in their rulings because fundamentally, a human being is either male or female.
◈ Definition of Khuntha According to Islamic Jurists
A Khuntha is someone who possesses both male and female sexual organs. Jurists base gender determination on the reproductive system. In this regard, the following clarifications are found:
✔ Clarifying Points:
① If a person's genetic structure does not align with the reproductive system but physically bears the organ of one gender, that person is not considered Khuntha.
② A woman with excessive male hormones or additional body hair does not become Khuntha; she remains a woman.
③ A Khasī (eunuch), whose testicles have been removed, is not considered Khuntha but remains a man.
④ An individual who, from birth, feels psychologically inclined toward the opposite gender (transgender), is, from a jurisprudential standpoint, classified according to their biological gender at birth.
⑤ Gender reassignment through surgery does not alter one's gender in Islamic jurisprudence.
◈ The International Concept of Khuntha
In 2013, the United Nations Human Rights Commission launched a campaign for the rights of the LGBTI community. According to this initiative, the definition of intersex (Khuntha) is:
“Intersex individuals are those whose sexual characteristics (including genitalia, glands, and chromosomes) do not align with traditional definitions of male or female.”
✔ Key Points:
① Intersex characteristics may be evident at birth or appear later during puberty.
② 0.05% to 1.7% of the global population is born with intersex characteristics.
③ Being intersex relates to biological sexual traits, not sexual orientation or gender identity.
◈ Juristic Perspective on Khuntha
Khuntha’s Two Phases:
1. Childhood Stage:
Jurists determine gender based on the organ used for urination:
- If the child urinates through the male organ, the child is deemed male.
- If through the female organ, then female.
- If both organs are equally functional, such an individual is termed Khuntha Mushkil, and the final decision is deferred until puberty.
2. Post-Puberty Stage:
After puberty, final determination is made based on signs such as:
- Menstruation
- Pregnancy
- Physical changes
- Sexual inclination
Based on Sexual Inclination:
- If an intersex person inclines towards men, they are considered female.
- If they incline towards women, they are considered male.
Jurists emphasize that sexual inclination is significant in gender determination, but it is not equivalent to personal gender identity (gender identity ≠ inclination).
◈ Surgery and Alteration in the Creation of Allah
Islamic scholars state that medical treatment-based bodily alterations are permissible—e.g., reconstructing a damaged nose or organ.
✔ Surgery for Khuntha Individuals:
- Once gender is conclusively determined, removal of unnecessary sexual organs is permissible.
- This does not fall under the category of unnatural alteration of Allah’s creation, as Shari‘ah recognizes a clear standard of natural disposition (fitrah).
◈ Issues Faced by Transgender Individuals and the Islamic Viewpoint
Islam considers patience and perseverance as virtuous qualities for individuals facing such struggles. A person who psychologically experiences confusion about their gender identity is not sinful, as long as they do not act upon those feelings.
◈ Hadith Regarding Waswasah (Whispers of the Mind)
Narrated by Abu Hurairah (RA):
Some companions asked the Prophet ﷺ regarding inner whispers. He ﷺ replied:
"This is a sign of pure faith."
(Ṣaḥīḥ Muslim)
◈ Responsibility of the Muslim Society
- It is essential to understand and adopt a compassionate attitude towards Khuntha and transgender individuals.
- Institutions like the Tablighi Jamaat and Tasawwuf play a vital role in their psychological rehabilitation.
- Social issues should be addressed through dialogue, and reformative institutions must be strengthened.
❀ Summary
Islamic jurisprudence provides clear principles regarding Khuntha individuals, which determine their rights and responsibilities in accordance with their physical and psychological state. Society must treat these individuals with kindness and dignity, and provide them with opportunities to contribute to the social framework.
