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FAQ

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Question:

Sahibus Samahah Mufti, can you explain the definition of intersex (khunsa) and the rulings related to it, and is intersex is the same as transgender or transsexual?

 

Answer:

Alhamdulillah, praise and thanks to Allah for the many countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.

The fuqaha defines intersex as: “Someone who has two genitalia, which is male genitalia and female genitalia. Or someone that does not have either genitalia but only has a hole to urinate.” Refer Hasyiah Ibn Abidin (5/464), Nihayah al-Muhtaj (6/31).

Meanwhile, according to Kamus Dewan, it is defined as: “someone who has two genitalia.” See 4th Edition Kamus Dewan.

Referring to the books written by Islamic scholars, we found that intersex is divided into two:

  • Ambiguous intersex: Someone whose gender is ambiguous, whether a male or a female. It is unknown whether the individual is a male or a female. They have both genitalia and the person’s gender cannot be identified from the person’s genitalia.
  • Non-ambiguous intersex: Someone whose gender is clear, whether the individual is a male or a female. The individual knows whether the individual is a male or a female. This individual is not categorized as ambiguous intersex, for the individual is certain of the individual’s gender, whether the individual is a male or a female, but the individual has an extra body part. The ruling for the individual in mirath (division of assets) and others falls under the clear gender of the individual. If the male gender is clear, then on him are the rulings for a male and vice versa.

Medically speaking, intersex is also known as Disorder of Sex Development (DSD). Its discovery is more complex than the discussion of early scholars.

The Method to Assign Intersex Identity

There are a few other factors that are used to assign the gender of an intersex individual other than the physical appearance and genitalia, such as the chromosomes and gonads (testes and ovary).

The fuqaha states other factors for intersex classification (other than physical appearance and genitalia). Some of them are; the growth of body hairs, moustache, beards, a deep voice and the like, then the fuqaha assign them as males. If it’s the opposite, then the individual is classified as a female.

Another way to assign the identity for intersex is to determine the feelings of attraction that the individual has. If the intersex individual is attracted towards a male, then the individual is a female, and if the individual is attracted towards a female, then the individual is a male.

It should be noted that the intersex meant here is specifically for ambiguous intersex individual. Al-Imam Al-Suyuthi Rahimahullah said: “When the term intersex is used in fiqh, then it refers to the ambiguous intersex.” Refer Al-Asybaah wa al-Nazhair, Al-Suyuthi (1/202).

Imam al-Nawawi said: “Intersex is divided into two types: some has a male’s penis and a woman’s vagina. And another does not have either genitalia (vagina or penis). However, they have a hole to urinate. For the first type of intersex, there are a few signs to assign their identity,

First: Urination

If the individual urinates only through the penis, then he is a male. Meanwhile, if the individual urinates only through the vagina, then she is a female. However, if the individual urinates through both, then the consideration falls through which genitalia the first time the individual urinates with.

Second and Third: Ejaculation and menstruation

If the individual ejaculates at a certain time, and the semen is ejaculated through the penis, then he is a male. If the semen flows through the vagina or she experienced menstruation, then she is a female. This is however, on the condition that it happens repeatedly to support the first assumption.

Fourth: Childbirth

Wiladah, or the process of childbirth is a concrete evidence that the individual is a female. Furthermore, it precedes other contradicting assumptions.

Fifth: The absence of menstruation when the individual has reached the age for puberty

This is an indication that the individual is a male. This is a similar method when determining from which genitalia the individual urinates with. Thus, menstruation when the individual has reached the age for puberty is a determining factor as to the individual’s gender.

Sixth: Feelings of attraction

If an intersex individual is attracted towards a male, then she is a female. Consequently, if the individual is attracted to a female, then he is a male. However, this is only considered if there are no other signs that can be used to assign the individual’s identity.

Seventh: The emergence of certain characteristics, such as bravery and patience in fighting enemies, and strength. Thus, this shows the male characteristics of the intersex individual.

Eighth: Facial hair growth, such as moustache and beard, or the development of breasts and breast milk.

As for the second type of intersex (does not has penis or vagina), then there are no signs to determine the individual’s identity except with the feelings of attraction.

Is It Permissible for An Intersex Individual to Be an Imam?

This issue is discussed by the fuqaha when they discussed the arrangement of congregational payer. Imam al-Nawawi said: “It is invalid if a woman or an intersex to be an imam for men. It is invalid for both the obligatory and sunnah prayers. However, according to mazhab Syafie and Hanbali, if the prayer consists of only women as the makmum, then it is not a prerequisite for a man to be their (the women’s) imam. Thus, if a woman is the imam of other woman in their opinion (al-Syafi’eyyah and al-Hanabilah), the prayer is valid. This is in accordance to a narration by Sayyidah Aisyah, Ummu Salamah and Atha’ bn Abi Rabah, which states: ‘Indeed, a woman is permissible to be the imam to other women.’”. See Al-Majmu’ Syarh Al-Muhazzab, Al-Nawawi (4/96).

Hence, it is clear from the statement of Imam al-Nawawi that states it is impermissible for an intersex individual to be the imam to other men. Imam al-Nawawi’s opinion is similar to Imam al-Syafie’s opinion: “And if someone prays with a woman (as the woman’s makmum), then the individual’s (such as an intersex) prayer is invalid. If an intersex individual prays (as a makmum) to a woman before the individual’s gender is made certain or assigned properly, then in my opinion, it is better for the individual to repeat the prayer. I concluded that the individual is not among the people that can be a makmum of a woman when the individual is performing prayer.” Refer Al-Umm, Al-Syafie (1/191).

Al-Imam Al-Shirazi Rahimahullah said: “It’s impermissible for a man to pray as makmum to ambiguous intersex, for there is a possibility that the individual is a woman. Furthermore, it is also impermissible for an ambiguous intersex to pray as makmum to another ambiguous intersex individual, for there is a possibility that the makmum is a man and the imam is a woman.” Refer Al-Majmu’ Syarh Al-Muhazzab (4/152).

Thus, the conclusions for this issue are:

  • It is permissible for an ambiguous intersex individual to be an imam to other women.
  • It is impermissible for an ambiguous intersex individual to be an imam to other men, or other ambiguous intersex individuals.

The Place of an Ambiguous Intersex Individual in the Arrangement of Congregational Prayer

Imam al-Nawawi said: “If the congregational consists of men, children, intersex individual and women, hence, the arrangement starts with men, then children, then intersex individuals, lastly the women.” Refer Al-Majmu' Syarh Al-Muhazzab, Al Nawawi (3/132).

In another statement, Imam al-Nawawi said: “Our ashab states: The arrangement of congregational prayer is mustahab (sunnah) and not following it does not invalidate the prayer.

Imam al-Mawardi Rahimahullah wrote in his book Al-Hawi Al-Kabir (2/340), citing the opinion of Imam al-Syafie, which states: “If a man is an imam, then his makmum (another man) stands on his right side. If the makmum is an ambiguous intersex or a woman, then they stand alone behind him (imam).

It is makruh (undesirable) for an ambiguous intersex individual to stand beside another man in a praying line (saf), and it is also makruh for the individual to pray beside another woman. The reason is, there is a possibility that he is a man if he prays beside a woman and vice versa.

The Aurah for the Ambiguous Intersex Individual

The opinion of the al-Hanabilah and al-Syafi’eyyah fuqaha states that the aurah for ambiguous intersex is the same as the aurah of a woman. Even the hair that falls off an ambiguous intersex individual is considered as aurah, with the exception of face and palms. And the individual’s body parts should not be exposed during purification or bathing. The reason being, if the individual exposed the body parts to other men, there is a possibility that the individual is a woman. If the individual exposed the individual’s body parts to other woman, there is a possibility that the individual is a man. Refer Raudhah Al-Thalibin, Al-Nawawi (1/283)Hasyiah Ibn Abidin (1/105)Al-Asybaah wa al-Nazhair, Ibn Nujaim (384).

Imam al-Buhuti Rahimahullah said: “The more ihtiyath (careful) way for an ambiguous intersex individual is to cover the aurah, the same as a woman.” Refer Syarh Muntaha Al-Iradaat, Al-Buhuti (1/150).

 

Intersex and Transgender

According to Wikipedia, transgender is defined as:

Transgender people are people who havegender identity or gender expression that differs from their assigned sex. Transgender people are sometimes called transsexual if they desire medical assistance to transition from one sex to another.[1]

Through this definition, the act of identifying or changing someone’s original gender to the opposite gender is known as transsexual. According to Kamus Dewan, transsexual is defined as: “Someone (a man or a woman) that identifies or expresses oneself as the opposite gender, and sometimes would change their genitalia (perform sex change) through surgery.” Refer 4th Edition of Kamus Dewan.

It is clear that ambiguous intersex individual is different from transsexual people, referring back to the definition and characteristics for an ambiguous intersex individual. Intersex is asl al-khilqah (Allah SWT’s original creation, where they are born as an intersex), while transsexual is taghyir al-khilqah (changing of Allah SWT’s creation). The act of changing Allah SWT’s creation is clearly prohibited. The prohibition is stated in a few of the Quranic and prophetic evidences. Allah SWT states:

 وَلَأُضِلَّنَّهُمْ وَلَأُمَنِّيَنَّهُمْ وَلَآمُرَنَّهُمْ فَلَيُبَتِّكُنَّ آذَانَ الْأَنْعَامِ وَلَآمُرَنَّهُمْ فَلَيُغَيِّرُنَّ خَلْقَ اللَّهِ ۚ وَمَن يَتَّخِذِ الشَّيْطَانَ وَلِيًّا مِّن دُونِ اللَّهِ فَقَدْ خَسِرَ خُسْرَانًا مُّبِينًا 

“And I will mislead them, and I will arouse in them [sinful] desires, and I will command them, so they will slit the ears of cattle, and I will command them so they will change the creation of Allah." And whoever takes Satan as an ally instead of Allah has certainly sustained a clear loss.”

Surah al-Nisa’ (119)

Imam al-Tobari Rahimahullah comments on this verse saying: “The scholars have differing opinion regarding the phrase ‘ فَلَيُغَيِّرُنَّ خَلْقَ اللَّهِ ’. Some of them said: ‘Surely, they would change Allah SWT’s creations of animals and castrate them.’ While others said that tattooing is the act of changing Allah SWT’s creation that is meant in the verse.” Then he included a hadith from Abdullah bin Mas’ud R.A, the Prophet PBUH said:

 لَعَنَ اللَّهُ الْوَاشِمَاتِ، وَالْمُسْتَوْشِمَاتِ، وَالْمُتَنَمِّصَاتِ وَالْمُتَفَلِّجَاتِ لِلْحُسْنِ، الْمُغَيِّرَاتِ خَلْقَ اللَّهِ

“Allah has cursed those women who practise tattooing or get it done for themselves, and those who remove hair from their faces, and those who create spaces between their teeth artificially to look beautiful, such ladies as change the features created by Allah.”

Sahih al-Bukhari (5943)

Al-Tobari wrote, once a question was asked to al-Hassan: “What is your opinion on a woman that carve her own face?”. Al-Hassan answered: “What is wrong with her? Allah SWT’s curse is on her, for she has changed the creation of Allah SWT.

Conclusion

Lastly, it should be emphasized that the act of changing the creation of Allah SWT by changing sex is prohibited and it is a great sin. Transsexuals are completely different from ambiguous intersex individuals, because these transsexuals were originally created as a man or a woman but changed their gender to the opposite gender. While ambiguous intersex individuals are indeed created with two genitalia. Hopefully this discussion will give us a clear understanding of religion. Ameen.

 

 End note:

[1] https://en.wikipedia.org/wiki/Transgender