Abstract
In this study, I offer a novel examination of intersex individuals as a third ontological category in Shiʿi legal discourse. While scholars have confirmed that intersex individuals are sometimes perceived as a third legal or social category in certain Muslim contexts, there are hardly any studies demonstrating that scholars within the Muslim tradition recognise intersex individuals as an ontological third category of human beings. Drawing on the early twentieth-century scholar Sayyid Kāẓim al-Yazdī’s account, I argue that Shiʿi jurists were not merely concerned with assigning a legal sex but sought to uncover the actual nature of intersex individuals. Their inquiries centred on whether they were male, female, or a distinct third category. I demonstrate that a notable group of jurists viewed intersex individuals as a separate ontological category beyond male and female. I then contrast the non-binary position with the binary approach observed in several legal cases, highlighting the legal rights and responsibilities assigned to intersex individuals.
Introduction*
In this study, I offer a novel examination and critical engagement with the idea of intersex individuals as a third ontological category of human beings in Shiʿi legal discourse, a perspective that has yet to be explored within Western scholarship. As will be discussed, although scholars have confirmed that, within certain Muslim legal and cultural contexts, intersex individuals are perceived as a third legal or social category, there are hardly any studies demonstrating that scholars within the Muslim tradition recognise intersex individuals as an ontological third category of human beings. Drawing on al-Yazdī’s account, I argue that the primary focus of Shiʿi jurists was not merely to assign a legal sex to intersex individuals, but rather to uncover the actual nature or sex of these individuals. Their inquiries revolved around an ontological question: Are intersex individuals male, female, or a distinct third human category? Presenting an original perspective in this field, I demonstrate that a notable group of these jurists sought to establish intersex individuals as a separate ontological category beyond male and female.
Modern scholarship on intersexuality emerged in the last few decades of the twentieth century, and it continues to develop, albeit slowly, in medical, gender, and religious studies.1 Except for a few scholars,2 Islamicists have not examined this subject in their studies on gender and sexuality. In the past decade, some scholars have examined Sunni juristic traditions concerning intersexuality, and a few have investigated Muslim medical discussions.3 The Shiʿi legal discourse on intersex has yet to be explored.
Traditional Muslim scholars and preachers frequently portray Islam as intolerant of non-binary sex and gender categories.4 This portrayal has reinforced orientalist narratives, suggesting that Islamic teachings on the male-female binary constitute a monolithic, inflexible code in which there is no space for dialogue and reinterpretation.5 For example, Paula Sanders claims that classical Islamic legal texts enforce sex and gender dimorphism by defining males and females as true opposites; because classical Muslim jurists could not tolerate intersex ambiguity, they imposed a gender on ungendered bodies to protect against social disorder and preserve the male-dominated sexual hierarchy. Sanders based her broad conclusions on an examination of only four classical legal manuals, with special attention to Kitāb al-mabsūṭ by the Ḥanafī jurist Muḥammad b. Aḥmad al-Sarakhsī (d. 483/1090).6
Although Sanders’s conclusions have been widely accepted by scholars in Islamic, Middle Eastern, and gender studies over the past three decades,7 she subsequently modified her earlier claims. Addressing Everett Rowson’s thesis concerning the “penetrator” versus “penetrated” dichotomy in Arabic literary texts,8 she wrote, “One of the most important conclusions resulting from this body of work is that male/female was not the only gender dichotomy in medieval Islamic societies; there was also male/not male.”9 Sanders recognised that Rowson’s argument demands a reassessment of Islamic legal texts on intersex people.10
Like Sanders’s later view, Geissinger argues for the existence of a male/not-male binary in Muslim culture, asserting that the modern concepts of male and female as binary opposites are at odds with the concepts used by classical Greeks and medieval Christians: Among Greeks and medieval Christians, humans were not categorised in binary fashion but as a spectrum on which some were better or more complete humans than others. In this continuum, free males were regarded as the complete expression of humanness, physically, intellectually, and spiritually, followed by other types of people, including females, who represent lesser, imperfect degrees of humanity. According to this view, the bodies of females and males are different in degree but not in kind.
Classical Muslim jurists, as noted by Geissinger, had a similar hierarchical understanding of gender, which determined a person’s status in society. For this reason, individuals with ambiguous genitalia had to be categorised as either female or male, if possible. However, these jurists recognised other gender categories, such as effeminates (mukhannathūn), i.e., people who were not completely male but possessed a degree of humanness. This classification was possible because classical jurists viewed gender on a spectrum that extended from being male to various degrees of not being male.11
Gesink argues that classical Muslim jurists viewed legal sex on a spectrum from all-male/protectors to all-not-male/protected. According to this view, intersex people occupy a “medial” category.12 Based on her examination of several classical Sunni juristic texts, she challenges Sanders’s argument on binary categories and argues that there are two strands of juristic thought, one that depicts sex as malleable until puberty and one that depicts sex as indefinitely malleable. She writes: “Intersex persons could be assigned or could adopt a legal sex of male, female or neither. Rather than ‘protecting’ male privilege, the authors of these texts largely served an individual’s health and religious needs.”13
Gesink adds that Sanders’s earlier claim that Islamic legal discourse classifies intersex individuals exclusively within binary sex categories of male and female is based solely on al-Sarakhsī.14 Yet, other Muslim jurists recognised at least three legal sexes: male, female, and a “medial sex” comprising intersex people.15
Recently, Yacoob has examined the binary perspective primarily from a Ḥanafī legal standpoint. She contends that in classical Ḥanafī law males and females are not the only legal entities. Although legal personhood is partially influenced by gender, other social factors such as age, enslavement, and social status are equally significant.16
In earlier work, I argued that, beginning in the fourteenth century, a significant number of Shiʿi legal experts challenged the binary body politics. They described a group of intersex people as being neither male nor female but having a third nature, representing a third sex and/or gender.17 In this study, I elaborate on this alternative non-binary sex or gender in the Shiʿi legal context, drawing on the writings of the early twentieth-century Shiʿi jurist, Sayyid Kāẓim al-Ṭabāṭabāʾī al-Yazdī (d. 1337/1919; henceforth, al-Yazdī).18 First, I provide an overview of how modern society and classical Muslim culture view intersex people. Next, I refine the Shiʿi understanding of intersex individuals, distinguishing between the khunthā (a person with both male and female genitalia) and the mamsūḥ (a person lacking both male and female genitalia)—two categories that are consistent with modern understandings of intersex persons. After exploring the emergence of binary and non-binary discourse in classical Shiʿi legal texts, I examine al-Yazdī’s assessment of the two juristic camps on this topic and his non-binary interpretation of human beings, based on his innovative legal argument for recognising an ontological third sex and/or gender. Finally, I contrast al-Yazdī’s non-binary position on intersex individuals with the binary approach observed in several legal cases, highlighting the differing legal rights and responsibilities granted to intersex individuals.
Before proceeding, it is important to establish whether the debates on binary/non-binary intersex19 in Islamic legal tradition address sex or gender or both. Currently, many studies of classical Islamic literature use these terms without defining them.20
Contemporary cultural and scientific discourses often characterise sex and gender as dichotomous. Most feminists and scholars of gender studies regard gender as a socially constructed phenomenon grounded in a “socialisation approach”, “masculine and feminine personality”, or “feminine and masculine sexuality”: gender embodies the societal appreciation of what represents maleness and femaleness and the associated social or cultural implications and repercussions. By contrast, most of these modern scholars regard sex as a biological, genetic, and chromosomal trait.21 Of course, not all feminists and scholars of gender studies agree with this distinction between gender and sex.22 Yet, all such arguments and counter-arguments are part of the same modern discourses on sex and gender, one for which there was no equivalent in ancient Greek, Persian, or Mediterranean cultures; in medieval Christian Europe; or in classical Muslim Arab, Persian, or Ottoman societies. This distinction between gender and sex, as Butler notes, challenges the presumption that such categories exist outside specific historical circumstances, cultural contexts, and power relations.23
Although there was no term in classical Arabic that distinguishes between sex and gender, Arabic does have binary concepts such as marʾ/marʾa, dhakar/unthā, and rajul/nisāʾ, roughly man/woman or male/female. Most likely, these paired concepts refer to both the biological conditions and behavioural characteristics of the two groups. However, since classical Arab vernacular and scientific culture had no access to the current discourse on sex and gender divisions, it is difficult to imagine that these terms signified either sex, gender, or both in any way consistent with our modern understanding.
Nevertheless, classical Arabs arguably were well acquainted with the differences between male and female biological features and behavioural characteristics. Classical Arabic literature often describes certain individuals as effeminate men (mukhannathūn) and mannish women (mutarajjilāt) based on their behaviour.24 However, effeminacy or mannishness was sometimes perceived as being shaped by biological variations and environment.25
Although there were no terms for “sex” and “gender”, classical Muslim scholars did classify human beings in several ways. Muslim logicians, purportedly influenced by Aristotelian thought,26 often assert that humans are a type (nawʿ) of animal distinguished from other beasts by an essential (dhātī) element known as ‘differentia’ (faṣl): being rational”.27 Thus, in their view, humans are rational animals. Building upon the accidental characteristics or attributes (ʿaraḍiyyāt) of humans, these logicians suggest a sub-taxonomy of humankind in which humans are divided into two groups (ṣinfayn): male/man and female/woman.28 In classical Qurʾānic exegesis (ʿilm al-tafsīr), the word type (nawʿ) is occassionally used.29 In the Islamic legal tradition, jurists used the following terms: ṭabīʿa (nature), qism (category/division), jins (genus), and khalq (creation/creature).30 In classical Islamic discourse, these concepts often encompassed not only biological conditions but also behavioural characteristics and even variations in legal status.31
Islamic legal thought is especially sensitive to the sexed body and physiological differences of humans. On the one hand, in certain domains—such as ritual purification, prayer, fasting, pilgrimage, clothing, inheritance, criminal law, and people’s roles in the public sphere—both Sunni and Shiʿi law often depend on whether the legally responsible individual (mukallaf) is male or female, although there are several sub-categories of males and females.32 On the other hand, these jurists, as will be noted later, primarily use biological markers to assess individuals as male, female, or intersex. For this reason, they frequently base legal rulings on the physical sexual features of legally responsible individuals, and not on their behavioural characteristics. This is why both Shiʿi and Sunni jurists often view mukhannathūn (effeminate men) as males and mutarrajjilāt as (mannish women) females, based on their biological sex.33 It makes sense, for example, that mukhannathūn, as the ḥadīths suggest, are not allowed to enter the female quarter of a mosque for congregational prayers, and that mutarrajjilāt are not allowed to pray in the men’s section of a mosque;34 or that mukhannathūn and mutarrajjilāt are forbidden to pursue male and female beautifications intended to resemble the opposite group, namely female and male, respectively.35 Moreover, in juristic contexts, these two groups are rarely treated as distinct categories with legal rights and responsibilities separate from those of men and women. For example, jurists explain Islamic law regarding inheritance shares for various categories of people: while, as we shall see, they carefully delineate the inheritance rights of men, women, and intersex individuals (khunthās), they make no mention of the specific inheritance shares of mukhannathūn and mutarrajjilāt. Similarly, in discussions about where individuals of a specific nature/sex should stand in a mosque, jurists typically assert that men should stand at the front, women at the back, and intersex individuals in the middle.36 However, there is hardly any discussion of where mukhannathūn and mutarrajjilāt should stand in congregational prayers. These examples suggest that Muslim jurists did not perceive mukhannathūn and mutarrajjilāt as distinct categories, but rather as members of the male and female categories, respectively.
One must be cautious when applying modern terminology relating to sex and gender to classical legal contexts. With this point in mind, in the rest of this article, I use the term “sex” to refer to the biological or sexed body of intersex individuals, in an effort to make the discussion intelligible for a modern audience.
It is also worth noting the following questions about the classical Islamic discourse: Was the aim of classical Muslim jurists to assign a legal sex to intersex individuals or to uncover their true nature? In other words, was the central debate on intersexuality solely about a conventional legal sex, or about the existence of a third category of humanity that was neither male nor female? As Sanders shows, Muslim jurists initially attempted to uncover the true nature of an intersex person through the application of medical37 or devotional markers (ʿalāʾim taʾabbudiyya). When they were unable to determine a true sex using these markers, they assigned intersex individuals a legal sex to address intersex-related legal matters in practice.38 According to Gesink, Muslim jurists used these markers to assign intersex individuals a legal sex of female, male, or neither.39
The markers used by Muslim jurists to assign sex had different implications. Some were used to determine the true sex of intersex persons and others were used to assign them a legal sex. For example, some ḥadīths suggest the use of “drawing lots” (qurʿa) to determine the inheritance rights of intersex people who have neither male nor female genitals. Al-Yazdī notes that the use of this marker results in assigning a legal sex to intersex people with neither male nor female genitals to determine their inheritance rights, but it does not reveal their true nature.40 Another marker was the number of the ribs. Although jurists have often rejected the number of the ribs as a valid marker, some, such as Fakhr al-Muḥaqqiqīn al-Ḥillī (d. 771/1369–70), claimed that if the number of the ribs were an accurate sign, it would be a decisive criterion for establishing the true nature/sex of an intersex person.41
In the present study, I examine and seek to complicate al-Yazdī’s account of the binary/non-binary discourse in classical Shiʿi scholarship. He suggests that the primary concern of Shiʿi jurists was to assess and determine the true nature/sex of intersex individuals, and not merely to assign a legal sex to them. Thus, these jurists were exploring an ontological question concerning the true nature of intersex people: Are they, in fact, males or females or neither, but rather a third human category? A group of these scholars attempted to prove that intersex people are a third ontological category of human beings other than male and female.
The Intersex Debates in Modern Discourse and in the Classical Muslim Context
Every year, a significant number of infants are born with physical characteristics that do not correspond with either sex.42 As historical documents demonstrate, such individuals have existed throughout history.43 At present, these individuals are often described as intersex.44 In a broad sense, the term intersex refers to variations in congenital sexual anatomy that are considered atypical for males or females. The UN Office for the Commissioner of Human Rights defines intersex as “an umbrella term used to describe a wide range of innate bodily variations in sex characteristics. ‘Intersex’ people are born with sex characteristics that do not fit typical definitions for male or female bodies, including sexual anatomy, reproductive organs, hormonal patterns, and/or chromosome patterns.”45
Some clinicians diagnose intersex as “disorders of sex development” (dsds), including anomalies of the sex chromosomes, gonads, reproductive ducts, and genitalia.46 According to this approach, intersex conditions include the following:
- –Congenital development of ambiguous genitalia (e.g., 46xx virilizing congenital adrenal hyperplasia; clitoromegaly; micro-penis).
- –Congenital disjunction of internal and external sex anatomy (e.g., complete androgen insensitivity syndrome; 5-alpha reductase deficiency).
- –Incomplete development of sex anatomy (e.g., vaginal agenesis; gonadal agenesis).
- –Sex chromosomal anomalies (e.g., Turner Syndrome; Klinefelter Syndrome; sex chromosome mosaicism).
- –Disorders of gonadal development (e.g., ovotestes).47
A large number of intersex and human rights activists caution against using the term disorders of sex/gender development (dsd). They object to the dsd terminology because it stigmatises individuals who suffered from medical mismanagement and secrecy in the nineteenth and twentieth centuries.48 To avoid such negative impacts, some scholars and intersex activists recommend the term “variations of sex development” or “divergence of sex development”.49
In classical Muslim discourse, a group of people whose biological appearance and (often) sexual anatomy do not fit the definition of male or female bodies—those who are currently classed as intersex—were commonly referred to as khunthā (pl. khanāthā or khināth), derived from the same root—kh-n-th—as mukhannath (effeminate, a different category of humankind in Muslim culture).50 Al-Khalīl b. Aḥmad al-Farāhīdī (d. between 160/777–8 and 175/790–1) defined khunthā as individuals who are neither males nor females. This definition implies that such persons occupy a separate category from males and females, or that they may be a combination of both. By contrast, al-Jawharī (d. 393/1003) defined khunthā as male and female persons who have both female and male sexual organs or genitalia.51
These definitions underscore the disputes regarding the conceptualisation of khunthā: Does the term denote a male, a female, a blend of both, or neither? Although al-Jawharī’s definition prevailed among lexicographers, al-Khalīl’s definition has sparked extensive discussion in Islamic medical and juristic literature.52 Sunni jurists often describe khunthās as those who possess both male and female sexual organs or lack distinct male or female genitalia.53 By contrast, Shiʿi jurists categorise individuals lacking both male and female genitalia as mamsūḥ and those with both male and female genitalia as khunthā.54 To the best of my knowledge, the earliest discussion of mamsūḥ is that of the jurist al-Qāḍī Ibn al-Barrāj (d. 481/1088).55
Shiʿi and Sunni jurists have established several primary markers to determine the sex or nature of such individuals, e.g., the source of urination and the number of ribs of the khunthās, as well as secondary markers, e.g., facial hair (for males) and menstruation and breasts (for females).56 Depending on the primary or secondary markers, Muslim jurists placed khunthās into two categories:57
- 1.Al-kunthā ghayr al-mushkil (uncomplicated intersex): those individuals whose sex may easily be assessed using primary markers during childhood or secondary markers after puberty.
- 2.Al-khunthā al-mushkil (complicated intersex): those individuals whose sex cannot be ascertained through primary or secondary markers, making it impossible to assign them a sex.58
Due to limitations on medical knowledge, classical Muslim legal (and medical) experts59 were able to assign a sex only to those individuals whose visible sex characteristics, including sexual anatomy and reproductive organs, differed from the norm. Individuals with different hormonal or chromosomal patterns who had no physical manifestations were categorised as male or female based on their visible sex characteristics. For this reason, classical discussions of khunthā and mamsūḥ did not encompass every individual who at present would be classified as intersex.
Intersexuality and the Inheritance Dilemma
Legal discussions of intersexuality primarily appeared in juristic texts on inheritance. Because inheritance shares are determined partly by the sex of the heirs, jurists had to classify them as male or female before calculating their share of the inheritance. In some cases, the heirs cannot be identifed as either male or female because they have both a vulva and a penis, because their urinary exit cannot be categorised as either a penis or vulva, or because they have no identifiable sexual organs. With regard to people with neither a penis nor a vulva (mamsūḥ), Shiʿi jurists hold that “drawing lots” (qurʿa) is the appropriate method to determine their share of the inheritance.60
Shiʿi inheritance law on intersex people with both a vulva and penis (khunthās) was based on ḥadīths that addressed two primary sex indicators—urination and the number of ribs.61 There was a strong consensus among classical Shiʿi jurists that urinatition is determinative. According to these Shiʿi jurists, a khunthā who urinates through the penis is a male, and one who urinates through the vulva is a female. If urination occurs from both the penis and vulva, but not simultaneously, sex is determined by the genitalia from which the urination issues first. However, if urination occurs from both orifices simultaneously, then one considers the orifice from which it ends.62 In all these cases, the khunthā may be identified as male or female: these people were classified as al-khunthā ghayr al-mushkil.
However, if a khunthā’s urination begins and ends from both orifices simultaneously, then the individual’s sex is a matter of dispute. According to the majority position, the person is a khunthā mushkil: such a person has the right to half of the male and half of the female inheritance share. According to a minority opinion, it is possible to establish the sex/nature of such persons by having a judge or a righteous person count their ribs. If the number of ribs on both sides are equal, then the person is a woman; if they are not equal, then he is a man.
Following the majority opinion, in the aformentioned condition the khunthā should be classified as mushkil and the inheritance should be determined differently from the inheritance of a male and a female. The question remains: What is the sex of these individuals? Do they belong to a third category of human being, neither male nor female, or are they both male and female?
The Emergence of Binary/Non-binary Debates in Twelver Shiʿi Legal Discourse
The biological ambiguities of the khunthā troubled classical Shiʿi jurists and judges, although they did not seem to have been concerned about whether khunthā mushkils belong to a third category of human being, neither male nor female.
Q. 4:1
O mankind! Reverence your Lord, Who created you from a single soul and from it created its mate, and from the two has spread abroad a multitude of men and women.
Q. 42:49
Unto God belongs sovereignty over the heavens and the earth; He creates whatsoever He will, bestowing females upon whomsoever He will, and bestowing males upon whomsoever He will.
Q. 75:39
[A]nd made from him the two [pairs], male and female.
Q. 92:3
[B]y Him Who created the male and the female.
Drawing on these verses, Ibn Idris articulates a theological argument that may summarised as follows:64
- 1.In these verses, God addresses the categories of humans in different ways: as a pair of males and females or simply as males and females.
- 2.These verses refer to various categories of humans.
- 3.However, in all the aforementioned verses, God mentions only two categories (tathniya), male and female; He does not mention a third category (qism thālith), such as intersex (khunthā).
- 4.If there were a third category of humankind, like intersex, He would have informed humans about this group out of His grace (imtinān).
- 5.Because He did not inform us about such a group, we may infer that males and females are the only groups of humans, and there is no other or third category.
Ibn Idris holds that khunthās are either male or female, which implies that they cannot be categorised as a third nature (ṭabīʿa thālitha). His argument is based on the words of God [such as] Q. 42:49. However, such an understanding [of the Qurʾān] is inaccurate, as there are no signs in these verses to exclude a third category of human being. Moreover, it appears that God in these verses is only addressing the dominant categories of humans, namely male and female, but not all humans inclusively.67
Al-Shahīd al-Awwal challenges Ibn Idrīs’s second point, namely, that the qurʾānic verses refer comprehensively to categories of humans. Instead, he suggests, these verses address only the majority of humankind or the members of those sexes who make up the vast majority of the human population—namely, males and females—but not the entirety of humanity. In fact, as he notes, there is no evidence in these verses or elsewhere in the Qurʾān that God did not create other categories of humans. Therefore, the existence of a third category/nature (ṭabīʿa thālitha) is plausible: al-Shahīd al-Awwal argues that no theological doctrine contradicts the idea that legal rulings on khunthā mushkil can differ from those on males and females.
Ever since al-Shahīd al-Awwal put forward his argument on the plausibility of a third category of humans, there have been two opposing camps in Shiʿi legal discourse: one group of jurists, including Ibn Fahd al-Ḥillī (d. 841/1437–8), rejects the notion of a third category and defends Ibn Idrīs’s position and his theological argument;68 a second group explores the plausibility and possibility of a third category of humanity. This latter group includes al-Suyūrī al-Ḥillī, known as al-Fāḍil al-Miqdād (d. 826/1422–3); Zayn al-Dīn al-Jubaʿī al-ʿĀmilī (d. 965/1557–8); Mullā Aḥmad al-Narāqī (d. 1245/1829); Mīr Fattāḥ al-Marāghī (d. 1250/1834), Muḥammad Ibrāhīm al-Yazdī (d. 1321/1903); and Sayyid Kāẓim al-Ṭabāṭabāʾī al-Yazdī (d. 1337/1919).69 In the remainder of this article, I focus on Sayyid Kāẓim al-Yazdī, who presents a sophisticated account of the non-binary position.
Al-Yazdī and the Non-binary Intersex Body
Al-Yazdī discusses intersex people and relevant legal rulings in two of his works: Ḥāshiyat al-Makāsib al-muḥarrama and Ḥāshiyat Farāʾid al-uṣūl.70 Both works are commentaries on texts written by the Shiʿi jurist al-Shaykh al-Anṣārī (d. 1281/1864): al-Makāsib al-muḥarrama and Farāʾid al-uṣūl, respectively.
Al-Anṣārī refers to khunthās in a chapter of al-Makāsib al-muḥarrama in which he examines the prohibition of male beautification and of men wearing silk and gold.71 He expands on the scope of these prohibitions to include types of beautification and clothing specifically associated with males or females, arguing that both males and females must avoid wearing such clothes and engaging in beautification that makes them resemble each other.72 Al-Anṣārī explains that khunthās must avoid the kinds of beautification and clothing that are specifically male and female because their true sex has not been determined. Hence, if the khunthā is actually a female, she must not wear clothes that are specifically for males, and if he is actually a male, he must not wear clothes that are specifically for females. Al-Anṣārī concludes that khunthās must avoid wearing sex-specific clothing so that they do not commit a prohibited act.73 Relying on a binary understanding of male and female categories, he contends, in Farāʾid al-uṣūl, that intersex individuals possess a form of “non-specific/undetailed knowledge” (ʿilm ijmālī) that makes them legally responsible (mukallaf) for religious matters either as males or as females. In situations in which it is difficult to identify a khunthā’s nature/sex, caution is advised to ensure compliance with their legal responsibilities.
Al-Yazdī challenges the assumption underlying al-Anṣārī’s position that there are only two sexes. Whereas al-Anṣārī advises khunthās to be cautious in appearance and action because he presumes that they are either males or females, al-Yazdī holds that khunthās are not required to be cautious because they are neither male nor female but belong to a third category. Since the majority of legal rulings apply to either males or females, khunthās, as members of a third category, are not responsible for sex-specific legal rulings due to the priority of divine exemption (aṣālat al-barāʾa al-sharʿiyya). Moreover, assuming that intersex people are a third sex category, the legal rulings that apply to them should be derived from scriptural sources independently—and not within the binary framework.
Al-Yazdī discusses both khunthās and mamsūḥs.74 His inclusion of mamsūḥs requires explanation because the ḥadīth reports on inheritance already provided a way for Shiʿi jurists to identify mamsūḥs as male or female—by drawing lots (qurʿa).75 According to al-Yazdī, the drawing of lots does not establish the true nature/sex of a mamsūḥ but only provides a legal solution to determine their inheritance share. Therefore, the status of mamsūḥs must be similar to that of khunthās in cases other than inheritance.
Al-Yazdī notes that the rulings of Shiʿi jurists on the sex of intersex people apply only to a khunthā and mamsūḥ whose sex is difficult to determine.76 In uncomplicated intersex cases, the jurists suggest using physical characteristics or markers to determine their sex as either male or female. He places these markers in three categories:
- 1.Medical markers that definitively establish the sex of an intersex person based on the dominance of one set of genitalia, distinguishing that set of genitalia as clearly genuine and dominant while considering the other feature as additional or insignificant.
- 2.Devotional signs referenced in ḥadīths, such as specific modes of urination or the number of ribs in intersex individuals.
- 3.Markers that may give rise to “uncertain opinions” (amārāt ẓanniyya) because they are not explicitly addressed in Islamic scriptures and are medically regarded as secondary to the primary indicator of sexual anatomy or genitalia. These secondary markers, which may develop in contrast to the primary one, include menstruation, prominent and rounded breasts, facial hair, pregnancy, and the ability to conceive or impregnate.
Intersex individuals whose sex can be determined to be male or female by using the first type of markers are not included in this discussion. Al-Yazdī argues, however, that the purpose of the second type—devotional markers—is to legally assign a sex to intersex people to enable the proper distribution of an inheritance. Advocating for the broader application of devotional markers to determine the sex of intersex individuals requires accepting the validity of these markers in rulings unrelated to inheritance. Regarding the third type of markers, which do not provide certainty and are not addressed in the ḥadīths, al-Yazdī notes that their application depends on whether one considers these uncertain markers reliable for determining the sex of intersex individuals. If so, then intersex individuals whose sex can be determined through these markers are also excluded from the subsequent discussion.
Next, al-Yazdī explores three distinct positions among Shiʿi jurists on khunthā mushkil and mamsūḥ:
- 1.Khunthā mushkil and mamsūḥ are in reality either male or female.
- 2.Khunthā mushkil, but not mamsūḥ, is in reality a third nature/sex.
- 3.Both khunthā mushkil and mamsūḥ are in reality a third nature/sex.
In Ḥāshiyat Farāʾid al-uṣūl, al-Yazdī defends the third position, providing an innovative argument to support this position.77 His pupil, Ibrāhīm al-Yazdī, who compiled this work, seems to agree with this position, offering no critiques of his mentor’s argument.
Before arguing for the third position, al-Yazdī examines the first and second positions. According to the first position, khunthā mushkil and mamsūḥ are in reality either male or female. This position is supported by several legal proofs, which al-Yazdī critiques as follows.
Ibn Idrīs al-Ḥillī provided the earliest proof for a binary division between male and female based on qurʾānic verses. Al-Yazdī, like al-Shahīd al-Awwal, argues that the verses do not classify human beings as exclusively either male or female. Rather, they apply to the vast majority of people, but not to all.78
The second proof revolves around a report regarding Imām ʿAlī’s claim that the sex of khunthās may be determined by counting the number of their ribs. This assertion is based on the assumption that khunthās are either male or female. This proof is also documented in Ibn Idrīs’s works.79 In response, al-Yazdī argues that counting the ribs is a devotional marker applicable specifically to matters of inheritance; it is not a method to uncover the true nature of the khunthā.80 Moreover, the matter under discussion pertains to cases in which such devotional indicators are not relevant or do not exist.81
Al-Yazdī analyses a third legal proof based on a ḥadīth attributed to the Sixth Imām, Jaʿfar b. Muḥammad al-Ṣādiq (d. 148/765), who stated that the inheritance share of a khunthā is half that of a male plus half that of a female.82 Accordingly, some scholars argued that if a khunthā is not clearly categorised as male or female, the Imām would not have prescribed this solution for their inheritance. Al-Yazdī responds by suggesting that the directive to give khunthās half of both the male and the female shares does not imply that they are males or females. By proposing a distinct inheritance share for a khunthā, the Imām recognises them as belonging to a third category that is neither male nor female.83
Finally, as noted, some ḥadīths suggest that the sex of a khunthā may be identified as either male or female by the mode of urination. In response, al-Yazdī reiterates his position on the use of anatomical features like the number of ribs to determine sex: the method of urination is not a definitive marker for identifying the sex of a khunthā. Rather, it is a divine guideline that assists jurists in determining these individuals’ inheritance shares and is applicable solely within the context of inheritance law.84
Al-Ḥusaynī al-Marāghī (d. 1250/1834–5) supports the position that a khunthā mushkil, but not a mamsūḥ, constitutes a third category, neither male nor female. He argues that the differences between a khunthā mushkil and a mamsūḥ are attested by ḥadīths and Shiʿi legal opinions. According to ḥadīths regarding inheritance, a khunthā mushkil receives half the share of a male and half the share of a female. However, a sound ḥadīth attributed to the Sixth Imām, by his companion al-Fuḍayl b. Yasār, states that the inheritance of a mamsūḥ should be determined by drawing lots (qurʿa).85 Furthermore, Shiʿi jurists often hold that in cases of unintentional homicide involving khunthā mushkils, their relatives are entitled to half the compensation awarded to a male and half that awarded to a female. In contrast, for unintentional homicide involving mamsūḥs, the compensation to their relatives is determined by drawing lots.
Al-Ḥusaynī al-Marāghī adds that the aforementioned ḥadīth and jurists’ opinion are based on the assumption that drawing lots is a valid method to establish the reality of any obscure matter in Islamic law.86
In his critique of al-Marāghī’s position, al-Yazdī argues that drawing lots is merely a legal expedient for addressing complex or ambiguous cases in practice; and that it does not necessarily uncover the true reality of any matter. Moreover, in Islamic law, drawing lots can be used in legal matters for which there is no tangible external reality. Finally, given the “established apparent meaning” (ẓuhūr mustaqarr) of the previous ḥadīth, the Sixth Imām has stipulated that drawing lots may be used as a method to determine the inheritance of a mamsūḥ. However, there is no additional evidence permitting its use to determine the status of mamsūḥs in contexts other than inheritance, such as unintentional homicide cases.87
Having refuted the first two positions, al-Yazdī argues for classifying both khunthā mushkil and mamsūḥ as a third sex category. He contends that there is a well-established customary understanding (fahm ʿurfī) for doing so. To better appreciate this novel legal proof, let us consider the two following premises underlying Shiʿi jurists’ use of the methodology of ijtihād to derive a divine legal ruling (ḥukm sharʿī).88
First, there are three types of subjects/topics in Islamic law (see Figure 1):
- 1.Subjects created, defined, or determined by the scriptural texts, i.e., the Qurʾān or sunna, are called divinely created subjects (al-mawḍūʿāt al-mukhtaraʿa wa-l-manṣūṣa); such subjects include prayer (ṣalāt) and fasting (ṣawm).
- 2.Subjects that are determined by society, whether the general public or the professional community, are called customary subjects (mawḍūʿāt ʿurfiyya), such as matters relating to human social interactions (muʿāmalāt), including commercial transactions.
- 3.Subjects that were originally customary but whose scope was expanded upon or limited by the Qurʾān or sunna, such as the age of puberty and the definition of marriage. The definition of marriage in pre-Islamic Arabia was broader than it was in Islam.
Subjects/topics of legal rulings.
Citation: Islamic Law and Society 2025; 10.1163/15685195-bja10063
MS. Ḥāshiyat al-Makāsib al-muḥarrama, Bunyād-i Muḥaqqiq-i Ṭabāṭabāʾī, Qum (# 19), fol. 26a
Citation: Islamic Law and Society 2025; 10.1163/15685195-bja10063
MS. al-ʿUrwa al-wuthqā, Bunyād-i Muḥaqqiq-i Ṭabāṭabāʾī, Qum (# 20)
Citation: Islamic Law and Society 2025; 10.1163/15685195-bja10063
MS. Taʿlīqāt bar Makāsib, Majlis Library, Tehran (# 8385), p. 37
Citation: Islamic Law and Society 2025; 10.1163/15685195-bja10063
Following the Shiʿi methodology of ijtihād, the first and third types of subjects should be investigated by mujtahids. As for customary subjects, mujtahids are not required to independently investigate them, but they may acquire knowledge about such topics—for example, gambling, usury (ribā), and different types of commercial transactions, by consulting with the general public. Alternatively, they may consult experts with specialised knowledge about, e.g., different types of insurance, and the use of medical technology to facilitate procreation.89
Second, in Islamic legal hermeneutics, there is a linguistic rule that a single concept may convey both a literal (ḥaqīqī) and a figurative (majāzī) meaning. The people who speak a particular language serve as authorities for determining the literal and figurative meanings of concepts within that language. For example, according to the Oxford English Dictionary, the literal meaning of “lion” is “a large, powerful carnivorous quadruped that hunts, with a tawny or yellowish-brown coat and a tufted tail, often referred to as the king of beasts”. The use of this term to refer to a courageous human being is figurative.
The question at hand concerns how ordinary people distinguish between the literal and figurative meanings of words in a specific language. Shiʿi uṣūlīs propose several lexical or semantic experiments to determine the literal and figurative meanings of words.90 One such experiment is known as “the validity of negation and the invalidity of negation” (ṣiḥḥat al-salb wa-ʿadam ṣiḥḥat al-salb). To determine the literal meaning of a term, Shiʿi scholars construct a subject-predicate proposition that includes the term whose literal meaning is sought and a term that may or may not represent that literal meaning. Either term can serve as the subject or predicate in the constructed proposition.91 Subsequently, the proposition is tested against customary (ʿurfī) usage to determine whether the predicate can be negated with respect to the subject without contradiction. If so, then the predicate does not represent the literal meaning of the subject. If not, then the predicate represents the literal meaning of the subject.
Consider the concept of “lion” as “a large, powerful carnivorous quadruped that hunts, with a tawny or yellowish-brown coat and a tufted tail, often referred to as the king of beasts”. Does this definition accurately capture the literal meaning of the word “lion”? To answer this question, we formulate the following negative proposition: “a large, powerful carnivorous quadruped that hunts, with a tawny or yellowish-brown coat and a tufted tail, often referred to as the king of beasts, is not a lion”, or, conversely, “a lion is not a large, powerful carnivorous quadruped that hunts, with a tawny or yellowish-brown coat and a tufted tail, often referred to as the king of beasts”. These statements are false and would be considered contradictory by native English speakers. Therefore, the concept of “a large, powerful carnivorous quadruped that hunts, with a tawny or yellowish-brown coat and a tufted tail, often referred to as the king of beasts” is the literal meaning of “lion”. Alternatively, let us consider the concept of “lion” as “a courageous human being”. Applying the same method, we construct the following negative proposition: “a courageous human being is not a lion”. The removal of “lion” from the concept of “a courageous human being” in the previous proposition does not result in a contradiction, as understood by native English speakers. This is because, according to native English speakers, “lion” does not necessarily signify “a courageous human being”, whereas “lion” undeniably denotes “a large, powerful carnivorous quadruped that hunts, with a tawny or yellowish-brown coat and a tufted tail, often called the king of beasts”. This suggests that the concept of “a courageous human being” is a figurative, rather than a literal, meaning of “lion”.
Al-Yazdī contends that the concepts of khunthā mushkil and mamsūḥ are customary subjects (mawḍūʿāt ʿurfiyya) whose meaning is socially constructed by native Arabic speakers, according to which khunthā mushkil and mamsūḥ are a third nature or sex that is neither male nor female. To demonstrate the existence of this customary understanding, al-Yazdī uses the semantic experiment of ṣiḥḥat al-salb (validity of negation). To examine the nexus between the concept of khunthā mushkil —whose literal meaning is sought— and the concepts of “being male” and “being female”, about which one wonders if they are the literal meaning of khunthā mushkil, one must formulate a proposition that combines khunthā mushkil with either “being male” or “being female”. Al-Yazdī argues that the negation of “being male” and “being female” from khunthā mushkil involves no contradiction according to Arab social and linguistic conventions. Thus, the following statements hold true: “a khunthā mushkil is not a male”, and “a khunthā mushkil is not a female” (“a male is not a khunthā mushkil”, or “a female is not a khunthā mushkil”).92 This reasoning also applies to the mamsūḥ. Accordingly, “being male” or “being female” does not entirely or partially fulfill the literal meaning—roughly, the denotation—of khunthā mushkil and mamsūḥ according to the customary understanding of native Arabic speakers. Thus, khunthā mushkils and mamsūḥs are neither male nor female but constitute a third nature/sex, and the reference to a khunthā mushkil or a mamsūḥ as “male” or “female” is figurative.
However, as al-Yazdī notes, one might critique this argument by asserting that if one classifies a khunthā or mamsūḥ as a distinct third category apart from males and females, then the lawgivers—whether God, the Prophet, or the Imāms—should have, as with legal rulings for males and females, promulgated specific legal rulings in the scriptural sources to regulate their conduct, out of grace (imtinān) and benevolence (iḥsān). Al-Yazdī counters that the lawgivers have not neglected legal rulings pertaining to this group of individuals. Rather, intersex people are explicitly encompassed within those legal rulings that address humanity or believers at large. Furthermore, out of grace, the lawgivers have bestowed upon intersex people a general legal principle implying that they are in practice exempt from certain legal obligations prescribed for males and females. This point will be explored in more detail in the subsequent section.93
Comparing Binary and Non-binary Positions with Regards to Rulings on Intersex People
The question remains: What are the implications of endorsing a non-binary body politics for intersex people compared to a binary position? Before examining al-Yazdī’s view on this question, we must consider relevant matters surrounding the Shiʿi understanding of ijtihād during his time.94
Since the eighteenth century, Shiʿi jurists used ijtihād as a method to derive legal rulings from authoritative sources, operating on two distinct levels:95 Jurists, on the first level, attempt to derive actual divine legal rulings (al-aḥkām al-sharʿiyya al-wāqiʿiyya) using four primary sources as ijtihādic proofs (adilla ijtihādiyya): the Qurʾān, sunna (tradition), ijmāʿ (consensus), and ʿaql (reason). If a legal ruling cannot be established in this manner, jurists proceed to the second level of ijtihād, addressing the issue through general principles known as juristic proofs (adilla faqāhatiyya). This level of ijtihād results in apparent divine legal rulings in practice (al-aḥkām al-sharʿiyya al-ẓāhiriyya al-ʿamaliyya). The objective at this stage is to arrive at a position on a given issue and explore the ways in which Muslims should implement it in practice. The need for apparent divine legal rulings in practice arises when a mujtahid, after exhaustive scrutiny of the Qurʾān, sunna, ijmāʿ, and ʿaql, concludes that an actual legal ruling on a topic is doubtful (maʿa l-shakk).96 In that case, legal rulings derived from juristic proofs apply only to matters for which no actual legal rulings can be found in the primary sources.
Apparent legal rulings in practice are based on four procedural principles: aṣālat al-barāʾa al-sharʿiyya (the priority of divine exemption), aṣālat al-iḥtiyāṭ al-sharʿiyya (the priority of divine precaution), aṣālat al-takhyīr (the priority of optional choice), and aṣālat al-istiṣḥāb (the priority of presumption of continuity).97 These four principles are the sole applicable juristic proofs: A legal ruling on a particular topic may be doubtful for one of two reasons: (1) an earlier definitive legal ruling is currently under reconsideration, (2) there is no previous definitive legal ruling. When a prior definitive ruling is being reconsidered, one applies the priority of presumption of continuity. There are two potential courses of action when there is no earlier definitive ruling: either the application of the priority of divine precaution is possible, or this principle cannot be enforced. In the latter case, the priority of optional choice is applicable. When the application of the priority of divine precaution is possible, there may or may not be scriptural indicators suggesting a punishment (ʿiqāb) in the Hereafter for those who disobey actual legal rulings that are currently in doubt: when such indicators do exist, the priority of divine precaution applies, whereas the priority of divine exemption should be practised in the absence of such indicators.
Generally, two situations can give rise to doubt in actual legal rulings: either there is doubt about the type of legal duty (al-taklīf) that is relevant to a specific topic, or the object of duty (mutaʿallaq al-taklīf or al-mukallaf bihi) is uncertain, even when the type of duty is known. A mujtahid may encounter cases in which, despite his thorough consideration of the ijtihādic sources, it is not possible to specify the type of applicable legal ruling. For example, after investigating the primary sources, he may be unable to determine the legal ruling on smoking tobacco and thus cannot conclude whether the smoking of tobacco is obligatory, prohibited, encouraged, discouraged, or merely permissible. In other situations, the mujtahid may know the type of legal ruling that applies to a topic but may be uncertain about its specific object. For example, he knows that there is an obligatory prayer on Friday but cannot determine the specific object (mutaʿallaq) of this legal ruling: Does the obligatory ruling pertain to the mid-day prayer (ẓuhr) or the Friday prayer (jumʿa)?98
Returning to the four procedural principles, when the legal ruling on a given case is doubtful regarding the type of legal duty (al-shakk fī l-taklīf)—because the scriptural texts are either silent, ambiguous, or contradictory—Imāmī uṣūlīs often opine that the principle of the priority of divine exemption applies.99 This principle implies that such cases are permissible, though not obligatory or encouraged. For example, in the case of smoking tobacco, the legal ruling itself is unknown because there is no clear revelatory text on this matter. Therefore, the mujtahid must determine whether the smoking of tobacco is prohibited or permissible. Based on the priority of divine exemption, he would conclude that the apparent legal ruling is that the smoking of tobacco is permissible in practice. However, as noted by these scholars, whenever the type of the legal ruling on a given case is known, but the object (mutaʿallaq) of the legal ruling is doubtful—namely, in cases pertaining to doubt regarding the object of duty (al-shakk fī l-mukallaf bihi)—then the priority of divine precaution prevails. For example, in the case of Friday obligatory prayer, this principle should be applied because the legal duty itself—obligatory prayer on Friday—is known, whereas the object of the legal duty—the mid-day prayer or the Friday prayer—is unknown. According to this priority, Muslims should participate in both the mid-day and Friday prayers on Friday to ensure that they have fulfilled the obligatory prayer mandated for Friday.
However, one cannot apply this legal logic unless there are a few possibilities about the doubtful object of legal duty, as in previous example. Otherwise, one turns to the next procedural principle.100 The priority of optional choice is applicable under the following circomstances:
- 1.The type of legal ruling on a given case is known, but the object of the legal ruling is doubtful, and there are unlimited possibilities about the doubtful object that makes following the precaution either not possible or highly difficult, with the result that rational people (ʿuqalāʾ) do not follow such knowledge in practice. For example, an individual knows that the consumption of wine is prohibited, and that one of the several glasses of liquids in a given room contains wine, but the person does not know exactly which one.101
- 2.A case for which there may be two possibilities—obligation and prohibition—but there is no received revelatory evidence indicating which one should prevail. In this situation, according to the priority of optional choice, the lawgivers leave all the options in the hands of legal practitioners, allowing them to choose one or the other possibility but not both. This is because this principle, as noted, applies to cases in which it is not possible to practise upon the priority of divine precaution.102
The priority of presumption of continuity applies to situations in which a previous definitive legal ruling is now uncertain. In this situation, individuals should adhere to the legal ruling in practice regarding anything about which they were previously certain but subsequently have come to doubt. For example, if someone is certain that he performed the ablution (wuḍūʾ) for morning prayers but is unsure whether an activity, such as taking a nap, may have invalidated it before mid-day prayers, the presumption of continuity allows him to maintain his previous state of certainty. In this case, he can maintain the existence of ablution until mid-day prayers and pray without performing a new ablution.103
What does one do, however, when one has doubt about a general legal ruling on a given topic, or one does not know the details of a specific actual case? The former situation, known as doubt pertaining to a legal ruling (shubha ḥukmiyya), emerges when there are no revelatory indications in the Qurʾān or sunna on a given topic, or when there are ambiguous or contradictory revelatory indications. The latter situation, known as doubt pertaining to an actual case (shubha mawḍūʿiyya), arises when one cannot specify the actual circumstances of a case. For example, imagine a glass containing a liquid that may be water (which is permissible to drink) or wine (which is prohibited).104 According to Shiʿi legal hermeneutics, doubt pertaining to an actual case is not a matter of ijtihādic investigation; it is a matter of practice in reality, and Muslim individuals are required to approach such cases by applying appropriate principles, as suggested in Islamic law. By contrast, doubt pertaining to a legal ruling is related to ijtihād and thus requires the application of legal hermeneutics.105
Yet another typology of doubt pertains to doubt concerning the concept of a legal proof or legal ruling (shubha mafhūmiyya) versus doubt concerning the factual application in a specific case (shubha miṣdāqiyya). The former arises when the intended meaning (mafhūm) of a given legal proof or ruling is ambiguous, while the latter occurs when the meaning of a legal proof or ruling is clear, but due to external and unrelated circumstances, there is doubt whether an actual case (miṣdāq) falls within the scope of that legal proof or ruling.
Doubt concerning the concept of a legal proof or legal ruling may be illustrated by the following example. Consider a legal proof that mandates showing respect for all scholars, except those who are considered immoral (fāsiq). A legally responsible person (mukallaf) may question whether she should respect a scholar who engages in minor sins (ṣaghāʾir) because she does not know whether the term “immoral” refers only to those who commit major sins (kabāʾir) or includes those who commit minor sins as well. If one understands the term fāsiq as applying exclusively to those who commit major sins, then the scholar who engages in minor sins must be respected. However, if the term fāsiq includes individuals who commit both major and minor sins, then such a scholar should not be respected.
Doubt concerning the factual application in a specific case may be illustrated as follows. Imagine that a legally responsible person (mukallaf) possesses definitive knowledge that the term fāsiq denotes only scholars who commit major sins. However, consider a scenario in which a person who is legally responsible encounters an unfamiliar scholar and is uncertain whether this scholar engages in major sins, warranting disrespect, or only minor sins, meriting respect. This uncertainty arises because the legally responsible person has insufficient knowledge of the scholar’s past or present behaviours.106
Some uṣūlīs, such as al-Yazdī and al-ʿIrāqī (d. 1361/1941),107 argue that the two dichotomies—namely, doubt pertaining to a legal ruling (shubha ḥukmiyya) vs. doubt pertaining to an actual case (shubha mawḍūʿiyya), and doubt concerning the concept of a legal proof or legal ruling (shubha mafhūmiyya) vs. doubt concerning the factual application in a specific case (shubha miṣdāqiyya)—are similar and can be used interchangeably.108
Let us return to the question at hand, namely the outcomes of the binary and non-binary approaches in specific legal rulings. Al-Yazdī, as noted, articulates his position through commentaries on al-Anṣārī’s works, which are based on the male/female binary. Now is the time to consider these two scholars’ interpretations of several legal rulings on intersexuality.
First, both scholars acknowledge that Islamic lawgivers made intersex people legally responsible (mukallaf) for performing religious duties because they are human. However, al-Anṣārī, who places intersex individuals within the male/female binary, holds that khunthā mushkils and mamsūḥs possess “non-specific/undetailed knowledge” (ʿilm ijmālī) of the fact that they must fulfil the responsibilities of either males or females because they are, in reality, either male or female. Yet, because khunthā mushkils and mamsūḥs do not know whether they are males or females, they do not know whether they should perform their religious duties as males or as females. This lack of knowledge ultimately pertains to the object of duty (mutaʿallaq al-taklīf or al-mukallaf bihi), not to the type of duty itself. This is because the lawgivers established the types of duties for males and females. Therefore, if it were possible to assign a male or female sex to khunthā mushkils and mamsūḥs, they would know the types of legal duties for which they are legally responsible. The problem is that it is not possible to identify their sex. As demonstrated, whenever the type of legal ruling on a given case is known but the object (mutaʿallaq) of the legal ruling is doubtful or uncertain, then the priority of divine precaution applies. For this reason, these people must be cautious and follow legal rulings for both males and females to ensure that they adhere to their religious duties—unless, of course, caution results in hardship (ʿusr/ḥaraj). Since the hardship is nullified by the legal maxim of “negation of hardship” (qāʿidat nafy al-ḥaraj), in such cases, intersex people are free to choose one option over the other according to the priority of the optional choice, although their initial duty is to seek a cautionary position.
By contrast, al-Yazdī, who adheres to a non-binary position according to which intersex people are a third sex, holds that khunthā mushkils and mamsūḥs are legally responsible for performing their legal duties in the following ways:
- –General Legal Rulings: Khunthā mushkils and mamsūḥs are legally responsible for observing legal rulings that address humans in general without specifying sex. This is because the proofs underlying such rulings are universal (ʿāmm) and directed towards all humans.
- –Sex-Specific Legal Rulings: Legal rulings that are specific to either the male or female category, and whose proofs explicitly bind them to one of these two categories, do not apply to khunthā mushkils or mamsūḥs, due to the priority of divine exemption.
- –Primarily General Legal Rulings with Specific Exceptions: Khunthā mushkils and mamsūḥs remain under the generality of the original general proof with regard to legal rulings that are specific to either males or females but whose proofs are primarily general (ʿāmm) and address all humans, from which one of the categories (male or female) was excluded by a secondary specific proof (khāṣṣ). Thus, they are legally responsible for these rulings.109
These situations concern cases in which khunthā mushkils and mamsūḥs are regarded as a third sex. However, as al-Yazdī notes, one might argue that there is no definitive proof that these people are a third sex. Consequently, there is uncertainty about whether they constitute a third sex or should be categorised as male or female. This situation differs from the situation in which these groups are not recognised as a third sex and from the situation in which it is known that they are a third sex. The question arises: in cases of doubt (maʿa l-shakk), are khunthā mushkils and mamsūḥs accountable for legal rulings? In al-Yazdī’s view, there is no difference between the current case, which involves doubt about whether khunthā mushkils and mamsūḥs are members of a third sex, and the situation in which khunthā mushkils and mamsūḥs are regarded as a third sex. Thus, they are legally responsible (mukallaf) for general legal rulings but are exempt from legal rulings that apply specifically to males or females. General legal rulings apply to them, even when there is doubt about whether or not they belong to a third category, because they are humans, and the general proof (dalīl ʿāmm) by its nature comprises all humans, including intersex people.
Concerning legal rulings that apply specifically to males or females, al-Yazdī illustrates the doubtful situation of khunthā mushkils and mamsūḥs as follows: either they are, in reality, a third sex (in which case specific legal rulings, as explained above, do not apply to them), or they are either male or female. In the latter case, the doubt pertains to an actual case (shubha mawḍūʿiyya) because one cannot specify the actual sex/nature of khunthā mushkils and mamsūḥs. Recall the previous example in which one does not know whether the liquid in a glass is water that is permissible to drink, or wine that is prohibited. Although such cases are beyond the scope of ijtihād, jurists still provide Muslim practitioners with general advice; that is, in any doubtful situation pertaining to an actual case, the priority of divine exemption applies. As a result, people are exempted from their religious duties in practice when the doubtful conditions pertain to actual cases. Because the situation of the khunthā mushkil and mamsūḥ concerns a doubtful condition pertaining to an actual case, the priority of divine exemption exempts them from any legal duty that specifically applies to males, because they do not know whether they are males and thus legally responsible for such duties. They are also exempted from those legal duties that are specific to females because, again, they do not know whether they are females who are legally responsible to perform such duties. Some legal rulings are specifically applicable to either males or females, although their underlying proofs are general and address all humans. In other words, the initial reasoning for these rulings is general. However, a secondary, specific proof may exclude males or females from these otherwise general rulings. In such cases, khunthā mushkils and mamsūḥs are not excluded from the general rulings and are legally responsible for observing them.
One might object to the last argument by asserting that the doubt regarding the third type of legal rulings—namely, those rulings that are specific to either males or females but the proofs for these rulings are general and addressed to all humans—ultimately shifts to doubt pertaining to “a case of the specific proof” (miṣdāq al-mukhaṣṣiṣ). In such a situation, according to Shiʿi legal hermeneutics, it is not possible to adhere to the general proofs. Let me explain. A general legal ruling exists simply because there is a proof underlying this ruling that is presumably general and originally included all humans. However, at a second stage, one category of humanity, male or female, was exempted from this primary general proof by a secondary specific proof. For this reason, we now doubt whether khunthā mushkils and mamsūḥs are also exempted from this general legal ruling. This doubt, as critics note, ultimately shifts to doubt about an instance of the specific proof (shakk fī miṣdāq al-mukhaṣṣiṣ). In such a situation, Imāmī scholars often hold that it is not conceivable to include a case or subject (e.g., khunthā mushkils and mamsūḥs) under a legal ruling based solely on the generality of the original proof.
Al-Yazdī rejects the formulation of the previous doubtful condition as doubt pertaining to a case of the specific proof. He notes that, in this situation, it is uncertain whether khunthā mushkils and mamsūḥs are a third nature/sex or are included in a male or female nature/sex. However, the doubt regarding their being a third nature/sex is associated with doubt about the existence of an additional specific proof to exempt them from this general proof and legal ruling. And doubt concerning the existence of an additional specific proof is always eliminated by the priority of generality (aṣālat al-ʿumūm) and the priority of non-specific proof (aṣālat ʿadam al-mukhaṣṣiṣ). Therefore, the general legal ruling still includes khunthā mushkils and mamsūḥs, and they should not be excluded from this legal ruling.
One might object that, although the priority of a non-specific proof eliminates any doubt regarding the possibility of khunthā mushkils and mamsūḥs being a third nature/sex, the doubt will persist if khunthā mushkils and mamsūḥs are not a third nature/sex. This is because they will then fit into either the male or female category. Therefore, this doubt shifts to another doubt, i.e., whether or not an actual case (i.e., khunthā mushkils and mamsūḥs) is excluded from the legal ruling by a specific proof. According to Shiʿi legal hermeneutics, in this situation, one cannot include the doubtful case under the legal ruling based solely on the generality of an original proof. As a result, such a case should be excluded from the general legal ruling.
Again, al-Yazdī does not subscribe to this formulation. Instead, he argues that the previous doubtful condition pertains to a legal ruling and not to an actual case.110 He notes that a doubtful condition pertaining to an actual case occurs when a situation is doubtful because one is unaware of the existence of a particular topic or phenomenon or lacks knowledge of its characteristics. However, in this case, all the characteristics of khunthās and mamsūḥs are known to us, even if we are uncertain about the legal rulings that pertain to them. Thus, the origin of this doubt relates to the existence of an additional specific proof. The existence of an additional proof is negated by the priority of non-specific proof. The reason for this is that the concepts “male” and “female” are not fully clear. Does “male” or “female” refer to a person with only a male or female set of genitalia, or does it refer to an individual with one set of genitalia without considering whether he or she has the other set of genitalia as well (li-annahu muraddad bayn kawnihi dhā farj wāḥid bi-sharṭ ʿadam al-ākhar aw lā bi-sharṭihi)? Therefore, persons with one set of genitalia are definitively recognised as male or female, and they can be excluded from the legal ruling by the specific proof that addresses either males or females. As a result, all other human beings remain under the generality of the original proof.
To clarify his point, al-Yazdī presents a similar case in which the rule is to “respect the people of knowledge but not those who are immoral”. One may not know whether a knowledgeable person who continues to commit minor sins is immoral, still moral, or somewhere in between—neither moral nor immoral. There is no objection to applying the generality of the original proof, with the result that this person should still be respected. This is because the doubt here pertains to the existence of an additional specific proof indicating that persons who commit minor sins are immoral, and the priority in this condition is the absence of such a proof. Ultimately, this doubt pertains to the meaning (mafhūm) of the primary specific proof that commands respect for people of knowledge but not for those who are immoral. Otherwise, the case (miṣdāq) itself—a knowledgeable person who commits minor sins—is clearly known to us as someone who commits minor sins.111
To better understand the legal implications of binary and non-binary doctrines, let us now examine several rulings concerning intersex individuals from the perspectives of al-Anṣārī and al-Yazdī.
Protecting the Gaze
Q. 24:30–31 instructs males and females to lower their gaze.112 Based on these verses, jurists hold that it is prohibited for males and females to freely look at members of the opposite sex unless the individual is their maḥram (i.e., someone who it is unlawful to marry due to a close blood relationship, such as a father, mother, brother, sister, or uncle). How should khunthā mushkils and mamsūḥs observe this legal ruling?
Consistent with his binary position, al-Anṣārī argues that such individuals, based on their non-specific/undetailed knowledge (ʿilm ijmālī), understand that in every case they are responsible for following this legal ruling: they know that if they are male, they must avoid looking at non-maḥram females; if they are female, they must lower their gaze and not look at non-maḥram males. While these individuals lack detailed knowledge (ʿilm tafṣīlī) about their specific sex and cannot identify the exact object of the obligation—whether to avoid looking at non-maḥram males or non-maḥram females—to ensure compliance, they should exercise precaution and refrain from gazing at both non-maḥram females and males. Following the same reasoning, al-Anṣārī asserts that intersex individuals must cover both their penis and vulva and protect them from view. Although only one of these is their actual private part (ʿawra), there is no way to determine which one it is. Therefore, they must cover both to ensure adherence to this legal requirement. Additionally, they should avoid unnecessary interactions with males and females.
By contrast, al-Yazdī notes that the qurʾānic verses and ḥadīths that refer to the lowering of one’s gaze explicitly address males and females. Given that khunthā mushkils and mamsūḥs are members of a third category, there is neither a verse nor a ḥadīth that explicitly addresses their gaze. Consequently, there is no justification for extending this legal ruling on lowering one’s gaze to these people. Khunthā mushkils and mamsūḥs are in doubt about whether there is any legal ruling on gazing that instructs them to lower their gaze. According to Shiʿi legal hermeneutics, in such cases, the priority of divine exemption applies. Therefore, intersex people should be exempt from the requirement to lower their gaze in the presence of the opposite sex.
Clothing
In the Islamic legal tradition, it is widely accepted that males and females must avoid wearing clothing that resembles that worn by the opposite sex: males should not wear female clothing, and vice versa.113 Does this legal ruling apply to khunthā mushkils and mamsūḥs? If so, how are they to comply with this ruling?
According to the binary position, khunthā mushkils and mamsūḥs know that they are either a man or a woman. To ensure adherence to the legal ruling on clothing, they must follow the priority of divine precaution by not wearing clothes that are worn only by males, as well as clothing that is worn only by females.114
In accordance with the non-binary approach, rulings on how to wear or arrange clothing are typically applied to male and female clothing styles. Yet khunthā mushkils and mamsūḥs are a third sex, neither male nor female, and there is no specific ruling governing their attire. Therefore, following the priority of divine exemption, they are permitted to wear clothing worn by either males or females.115
Clothing and Covering for Prayers
According to al-Anṣārī, khunthā mushkils and mamsūḥs should generally exercise caution in accordance with the priority of divine precaution. Thus, they must avoid wearing silk and must cover their entire bodies during prayers.116 By contrast, al-Yazdī contends that it is permissible for khunthā mushkils and mamsūḥs to wear silk and that they are not required to cover their whole bodies during prayers. This is because the legal ruling on the prohibition of wearing silk during prayers is specifically directed at males. As members of a third sex, khunthā mushkils and mamsūḥs may doubt whether this prohibition applies to them. This doubt pertains to the legal ruling. In such cases, the priority of divine exemption prevails, leading to their exemption from the prohibition on wearing silk during prayers. Similarly, the obligation to cover the whole body during prayers applies to women. Thus, khunthā mushkils and mamsūḥs, as a third sex, will doubt whether this ruling applies to them. This doubt also pertains to the legal ruling, and hence, the priority of divine exemption should be enforced, exempting khunthā mushkils and mamsūḥs from the requirement to cover their entire bodies during prayers.117
Praying Loudly or Quietly in a Whisper
As established in Shiʿi law, males should recite the morning, evening, and night prayers out loud, while females should recite these prayers in a whisper. How should individuals who are khunthā mushkil or mamsūḥ recite their prayers?
Before addressing this question, al-Anṣārī presents two possible proofs for why women should recite their prayers in a whisper:
- 1.Women should recite their prayers quietly based on the principle of “alleviation” (rukhṣa). Although the default ruling is to recite prayers out loud, lawgivers adjusted that ruling to enable a quieter recitation for women to alleviate their burden or reduce hardship.
- 2.Women are instructed to recite quietly as their “original command” (ʿazīma), meaning that the original legal ruling is for them to pray quietly. Thus, it is obligatory for women to recite prayers in a whisper because reciting them aloud is originally prohibited for them.118
Al-Anṣārī now explains his position on the manner in which khunthā mushkils or mamsūḥs should recite prayers. According to the first proof, which is based on alleviation (rukhṣa), they should recite their prayers out loud. This is because the original legal ruling for all humans is to recite prayers aloud, and the alleviation applies specifically to women. Since khunthā mushkils and mamsūḥs cannot be certain whether this alleviation applies to them, they should follow the general practice for all people and recite their prayers aloud. According to the second proof, which holds that women are commanded to recite quietly as their original command (ʿazīma), khunthā mushkils and mamsūḥs, due to their ambiguous status, should exercise the priority of divine precaution. Therefore, to fulfil their religious duties, they should perform their prayers twice: reciting out loud once and then again quietly. As al-Anṣārī notes, however, there is a consensus (ijmāʿ) against the repetition of prayers. For this reason, individuals who are khunthā mushkil and mamsūḥ should be given the option to pray either out loud or quietly, based on their preference, in accordance with the priority of the optional choice.119
By contrast, according to al-Yazdī, khunthā mushkils and mamsūḥs as members of a third sex category, are not specifically obligated to recite prayers either out loud or quietly. This is because the legal ruling for reciting out loud is directed at males, while quiet recitation is directed at females. Consequently, these individuals may doubt whether either of these legal rulings applies to them. This uncertainty relates to the type of duty (al-shakk fī l-taklīf), and in such cases, the priority of divine exemption applies. Therefore, khunthā mushkils and mamsūḥs, in accordance with the priority of the optional choice, should be allowed to recite prayers either out loud or quietly according to their preference.
Al-Yazdī adds that, even from a binary perspective, al-Anṣārī’s argument on this matter is flawed. In cases of alleviation (rukhṣa), al-Yazdī remarks, khunthā mushkils and mamsūḥs should be given the choice to recite either out loud or quietly, because even women are not obligated to recite quietly. They are exempt from the legal ruling that requires males to recite prayers out loud and can choose to recite in either manner according to the principle of alleviation. The situation is more complex for khunthā mushkils and mamsūḥs. They may not know whether the legal ruling requiring recitation out loud, which applies only to males, is directed at them, because they do not know if they are males. This doubt relates to the legal duty (al-shakk fī l-taklīf), and in cases of doubt about legal duty the priority of divine exemption applies. Consequently, they are exempt from the obligation to recite out loud. In accordance with the priority of the optional choice, they are free to choose whether to pray aloud or quietly.
With regard to the second proof, according to which women are commanded to recite quietly as their original obligation (ʿazīma), al-Anṣārī concludes that khunthā mushkils and mamsūḥs were originally required to adhere to the priority of divine precaution by reciting their prayers twice—once out loud and once quietly. However, one might claim that there is a consensus against the practice of duplicating prayers. Al-Yazdī, however, argues that there is no consensus against repeating a prayer: there are scarcely any fatwās supporting the view that duplicating prayers is not allowed, much less scholarly agreement. Therefore, as al-Anṣārī initially suggested, according to the binary position, khunthā mushkils and mamsūḥs are required to pursue the priority of divine precaution and duplicate their prayers—reciting them aloud once and quietly the second time. This obligation to repeat the prayers is based on the principle that it is not permissible to recite one chapter or two different chapters of the Qurʾān consecutively within one prayer (ʿadam jawāz al-qirān muṭlaqan fī l-ṣalāt). However, if one maintains that consecutive recitation of one chapter or two different chapters in a single prayer is permissible, then there is no need for these individuals to repeat their prayers. Instead, they may adopt a precautionary approach by reciting one chapter twice (once out loud and the second time in a whisper) or two different chapters (one out loud and the other quietly) in a single prayer.120
Marriage
And who guard their private parts, save from their spouses or those whom their right hands possess, for then they are not blameworthy—and as for those who seek beyond that, it is they who are transgressors (Q. 23: 5–7).121
According to al-Anṣārī, because it is uncertain whether khunthā mushkils and mamsūḥs are male or female, they cannot marry a woman because the principle of “priority of not-being male” (aṣālat ʿadam al-dhukūriyya) applies to these individuals (who might be females). This means that maleness, which is regarded as a necessary factor for marrying a women, does not apply in this case. Therefore, these individuals are required to guard their private parts from persons who are not their spouses. Similarly, they cannot marry a man because the principle of “priority of not-being female” (aṣālat ʿadam al-ʾunūthiyya) indicates that femaleness, a necessary factor for marrying a man, does not apply in their case. These individuals must also guard their private parts from persons who are not their spouses.122
In order for a marriage contract to be valid, al-Anṣārī argues, there must be definitive knowledge that the husband is male and the wife is female. Without this certainty, the contract is invalid and has no legal effect. Therefore, such individuals are required to guard their private parts and remain chaste. He adds that a marriage contract between a khunthā mushkil or mamsūḥ and either a male or female is inherently ineffective. This means that such a contract does not legitimise sexual pleasure or any other legal consequence of marriage.123
One might argue, however, that marriage between a khunthā mushkil or mamsūḥ and a male or female creates doubt that pertains to the legal ruling. If so, then the priority of divine exemption takes precedence. According to this priority, such marriages should not be prohibited. However, as al-Yazdī notes, al-Anṣārī would counter this objection by asserting that the principle of the ineffectiveness of the marriage contract takes precedence over the priority of divine exemption. Here, this principle serves as an obstacle to applying the priority of divine exemption.124
In the context of marriage, al-Yazdī concurs with al-Anṣārī, affirming that marriage is exclusively a contract between a man and a woman. However, khunthā mushkils and mamsūḥs fall into a third category for which the lawgivers have not established specific marriage regulations. As such, a valid or effective marriage contract between a khunthā mushkil or mamsūḥ and either a male or a female cannot be established. Furthermore, even if one assumes that khunthā mushkils and mamsūḥs are entirely exempt from legal rulings—that is, that they are not legally responsible according to the principle of priority of the initial exemption (barāʾa aṣliyya)125—a legitimate marriage between them and a male or a female would still be impossible. This is because in such cases the principle of the ineffectiveness of the marriage contract and the unlawfulness of any sexual pleasure always takes precedence over other priorities or principles, preventing the application of the initial exemption.126 It is also understandable that these jurists did not address a situation in which both parties are intersex individuals, as they considered marriage in Islam to be exclusively between a man and a woman.
It is notable that in their discussions of the inheritance shares of intersex people, classical Shiʿi jurists mention a situation in which an intersex person is a contracting party in a marriage as a husband or wife. They even calculated the inheritance shares of such an individual.127 Moreover, a ḥadīth attributed to Imām ʿAlī refers to a married khunthā person.128 Additional research is needed to reexamine the subject of marriage for khunthā mushkils and mamsūḥs across the historical development of Shiʿi legal discourse. A better understanding of this discussion may provide deeper insights into the reasoning behind the position of later jurists, such as al-Anṣārī and al-Yazdī, on the improbability of a valid marriage for these individuals.
Conclusion
I have argued that Islamic law is more accepting of non-binary sex and gender divisions than many contemporary Muslim scholars and orientalists claim. The male–female dichotomy is not a monolithic, rigid code without room for discussion, reinterpretation, and historical development. In Shiʿi law, the discussion of the binary/non-binary categorisation of humankind began as early as the twelfth century ce. By the fourteenth century, there were two opposing camps of Shiʿi legal experts on intersexuality. One advocated for a binary position of male and female, the other for a non-binary position that treats intersex people—khunthā mushkils and mamsūḥs—as a third category of humankind.
In the early twentieth-century, the Shiʿi jurist Sayyid Kāẓim al-Yazdī supported the non-binary view of human beings. In this essay, I have compared his perspective with the binary approach in several legal cases, highlighting the legal implications of these contrasting positions for the legal rights and responsibilities of intersex people. Further examination is required to understand the similarities and differences between the two camps on other legal matters relating to intersex people or, more broadly, to those who identify as non-binary individuals. Such investigations will surely advance our understanding of the ramifications of binary and non-binary body politics in the public and private spheres of Muslim societies.
Acknowledgment
Earlier versions of this essay were presented at the Shiʿi Text Reading Group at the University of Exeter during the covid-19 pandemic and in a lecture that I gave at the Department of Philosophy and Religious Studies Colloquium at Utrecht University. At the present time, Indira Gesink and I are collaborating on an edited volume on intersex in Islam, and we frequently engage in discussions on intersex in Islamic law, medical discourse, and literatue. I deeply value her insights. I am also grateful to the two anonymous reviewers for their constructive comments. Finally, I owe a special debt of thanks to David Powers for his meticulous reading, editorial guidance, and insightful suggestions, which have greatly enhanced the clarity and depth of this text.
This publication is part of the project Beyond Binaries: Intersex in Islamic Legal Tradition (Project Number: vi.Veni.211F.093), funded by the Dutch Research Council (nwo) under the Veni Talent Programme.
In this study, the following date formats are employed
- –Common Era (ce) and hijrī Qamarī (Islamic Lunar) Dates: No special notation is used.
- –Hijrī Shamsī (Islamic Solar) Dates: Noted with ‘sh’.
Parts of such studies have been published in special issues of journals, including Chrysalis: The Journal of Transgressive Gender Identities, 2:5 (1997–98); glq: A Journal of Lesbian and Gay Studies, 15:2 (2009); Culture, Health and Sexuality: An International Journal for Research, Intervention and Care, 23:4 (2021); and tsq: Transgender Studies Quarterly, 9:2 (2022). Other pioneering studies in this regard are Gilbert Herdt (ed.), The Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History (Princeton: Princeton University Press, 2020 [1993]); Alice Domurat Dreger, Hermaphrodites and the Medical Invention of Sex (Cambridge, MA: Harvard University Press, 1998); John Colapinto, As Nature Made Him: The Boy Who Was Raised as a Girl (New York: HarperCollins, 2000); Anne Fausto-Sterling, Sexing The Body: Gender Politics and the Construction of Sexuality (New York: Basic Books, 2000); Hermaphrodites with Attitude (Newsletter of isna), published from December 1994 until Spring 2003; Sharon E. Sytsma, “Ethics and Intersex”, International Library of Ethics, Law, and the New Medicine, 29 (2006); Sharon Preves, Intersex and Identity: The Contested Self (New Brunswick: Rutgers University Press, 2003); Alice Dreger (ed.), Intersex in the Age of Ethics (University Publishing Group, 1999); Suzanne Kessler, Lessons from the Intersexed (New Brunswick: Rutgers University Press, 1998); Susannah Cornwall, Sex and Uncertainty in the Body of Christ: Intersex Conditions and Christian Theology (London: Routledge, 2010); idem, “British Intersex Christians’ Accounts of Intersex Identity, Christian Identity and Church Experience,” Practical Theology, 6:2 (2013), 220–36; Megan K DeFranza, Sex Difference in Christian Theology: Male, Female and Intersex in the Image of God (Wm. B. Eerdmans, 2015).
See, for example, Abdelwahab Bouhdiba, Sexuality in Islam, trans. Alan Sheridan (Boston: Kegan Paul, 1985), 30–42; Paula Sanders, “Gendering the Ungendered Body: Hermaphrodites in Medieval Islamic Law”, in Beth Baron and Nikki Keddie (eds.), Women in Middle Eastern History: Shifting Boundaries in Sex and Gender (New Haven: Yale University Press, 1991), 74–95.
On Islamic legal discussions of intersexuality, see, for example, Mehrdad Alipour, “Transgender Identity, the Sex-Reassignment Surgery Fatwās and Islamic Theology of a Third Gender”, Religion and Gender, 7:2 (2017), 164–79, at 173–76; Saqer A. Almarri, ““You Have Made Her a Man among Men” Translating the Khuntha’s Anatomy in Fatimid Jurisprudence”, Transgender Studies Quarterly, 3:3–4 (2016), 578–86; idem, “Non-binary Sexual and Gender Identities in the Community: the Khuntha as an Isolated Being in the Mosque”, Body and Religion, 3:2 (2019), 166–87; Ash Geissinger, “Islam and Discourses of Same-Sex Desire”, in Donald L. Boisvert and Jay E. Johnson (eds.), Queer Religio: Homosexuality in Modern Religious History, 2 vols. (Santa Barbara: Praeger, 2012), 1: 69–90, at 72–73; Indira Falk Gesink, “Intersex Bodies in Premodern Islamic Discourse: Complicating the Binary”, Journal of Middle East Women’s Studies, 14:2 (2018), 152–73; Ani Amelia Zainuddin and Zaleha Abdullah Mahdy, “The Islamic Perspectives of Gender-Related Issues in the Management of Patients with Disorders of Sex Development”, Archives of Sexual Behavior, 46 (2017), 353–60. The following studies deal with Islamic medical and bioethical debates on intersex topics: Nasir Malim and Aasim I. Padela, “Islamic Bioethical Perspectives on Gender Identity for Intersex Patients”, Journal of the British Muslim Medical Association, 5:2 (2020), 19–25; Inas A. Mazen, “Clinical Management of Gender in Egypt: Intersexuality and Transsexualism”, Archives of Sexual Behavior, 46 (2017), 369–372; Mohd Salim Mohamed and Siti Nurani Mohd Noor, “Islamic Bioethical Deliberation on the Issue of Newborns with Disorders of Sex Development”, Science and Engineering Ethics, 21 (2015), 429–40. On the correlation between the medicalisation of intersex people and Islamic fatwās, see Mehrdad Alipour, “The Nexus between Gender-Confirming Surgery and Illness: Legal-Hermeneutical Examinations of Four Islamic Fatwas”, Journal of Middle East Women’s Studies, 18:3 (2022), 359–86; Muhammad Afif Mohd Badrol, Abdul Bari Awang, and Sayed Sikandar Shah Haneef, “Intersex Gender Determination in Classical Islamic Law and Modern Medicine: An Analysis for Integration”, Al-Shajarah: Journal of the International Institute of Islamic Thought and Civilization (istac), 23:2 (2018), 469–96; Indira Falk Gesink, “Intersex in Islamic Medical, Law and Activism”, in Justine Howe (ed.), The Routledge Handbook of Islam and Gender (London: Routledge, 2020), 116–29; Sara Scalenghe, Disability in the Ottoman Arab World, 1500–1800 (Cambridge: Cambridge University Press, 2014), 124–62; Taqwa Zabidi, “Analytical Review of Contemporary Fatwas in Resolving Biomedical Issues over Gender Ambiguity”, Journal of Religion and Health, 58:1 (2019), 153–67. For general discussions of sex and gender in the Muslim world, including intersex topics, see Corinne Fortier, “Sexualities: Transsexualities: Middle East, West Africa, North Africa”, Encyclopedia of Women and Islamic Cultures [ewic] (2019); Basim Musallam, Sex and Society in Islam: Birth Control before the Nineteenth Century (Cambridge: Cambridge University Press, 1983); Vardit Rispler-Chaim, Disabilities in Islamic Law (Berlin: Springer Science and Business Media, 2006); Chantal Zabus, “Transing the Algerian Nation-State: Textual Transgender and Intersex from Pre-Independence to the Black Decade”, Acta Neophilologica, 52:1–2 (2019), 69–96; Dror Zeʾevi, Producing Desire: Changing Sexual Discourse in the Ottoman Middle East, 1500–1900 (Berkeley: University of California Press, 2006).
For fatwās, see Alipour, “The Nexus between Gender-Confirming Surgery and Illness”, 359–86. On the views of Muslim preachers, see Assim al-Hakeem, “Gender Identity in Islam (Male, Female, Transgender, Intersex, No Gender)”, assimalhakeem, Accessed October 2023: https://www.youtube.com/watch?v=pQ0DE7tI7No; Amer Jamil, “The Muslim Perspective on Transgender Ideology (lgbt)”, @UstAmerJamil, Accessed October 2023: https://www.youtube.com/watch?v=oWF-b_rXwpU; Yasir Qadhi, “Rulings on Transgenderism in Islam”, EPIC MASJID, Accessed October 2023: https://www.youtube.com/watch?v=iCsUXGz1_6I.
Bouhdiba, Sexuality in Islam, 30–42; Sanders, “Gendering the Ungendered Body”, 74–95.
The other three sources are al-Mukhtaṣar of al-Qudūrī (d. 428/1036–37), al-Hidāya of al-Marghīnānī (d. 593/1196), and al-Mabsūṭ fī fiqh al-imāmiyya of al-Ṭūsī (d. 460/1067). In addition to legal sources, Sanders refers to The Canon of Medicine (al-Qānūn fī l-Ṭibb) of Ibn Sīnā (d. 428/1037) (Sanders, “Gendering the Ungendered Body”, 76). In fact, Muslim medical discourse demonstrates flexibility concerning gender or sex categories; see Gesink, “Intersex Bodies”, 160–63.
See, for example, Kecia Ali, Sexual Ethics and Islam: Feminist Reflections on Qurʾan, Hadith, and Jurisprudence (Oxford: Oneworld Publications, 2006), 114; Almarri, “‘You Have Made Her a Man among Men’”, 581; Elizabeth M. Bucar, “Bodies at the Margins: The Case of Transsexuality in Catholic and Shia Ethics”, Journal of Religious Ethics, 38:4 (2010), 601–15; Afsaneh Najmabadi, Professing Selves: Transsexuality and Same-Sex Desire in Contemporary Iran (Durham: Duke University Press, 2014), 177; Rispler-Chaim, Disabilities in Islamic Law, 70; Scalenghe, Disability in the Ottoman Arab World, 139–40; Zabidi, “Analytical Review of Contemporary Fatwas”, 156; Zeʾevi, Producing Desire, 9 and 23.
See Everett K. Rowson, “The Categorization of Gender and Sexual Irregularity in Medieval Arabic Vice Lists”, in Julia Epstein and Kristina Straub (eds.), Body Guards (New York: Routledge, 1991), 50–79; idem, “Gender Irregularity as Entertainment: Institutionalized Transvestitism at the Caliphal Court in Medieval Baghdad”, in Sharon Farmer and Carol Braun Pasternack (eds.), Gender and Difference in the Middle Ages (Minneapolis: University of Minnesota Press, 2003), 45–72.
Paula Sanders, “Hermaphrodites Revisited: A Reconsideration”, (2008, unpublished), 4, Accessed October 2023: www.academia.edu/35003377.
Ibid.
Geissinger, “Islam and Discourses of Same-Sex Desire”, 72–73. Also see idem, Gender and Muslim Constructions of Exegetical Authority (Leiden: Brill, 2015), 30–65; idem, “Applying Gender and Queer Theory to Pre-modern Sources”, in Justine Howe (ed.), The Routledge Handbook of Islam and Gender (London: Routledge, 2020), 101–15.
Gesink, “Intersex Bodies”, 153.
Ibid.
Ibid., 154.
Ibid., 153.
Saadia Yacoob, Beyond the Binary: Gender and Legal Personhood in Islamic Law (Berkeley: University of California Press, 2024), 6.
Alipour, “Transgender Identity”, 174–76.
Sayyid Kāẓim al-Ṭabāṭabāʾī al-Yazdī was born in a village near Yazd in Iran. He began his religious studies in Yazd, travelled to Mashhad and to Isfahan, and finally, in 1864, to Najaf in Iraq, where he completed his studies. He lived in Najaf until his death and was buried there. He studied with Muḥammad Bāqir al-Masjid-shāhī (d. 1301/1883–4), al-Shaykh Rāzī al-Najafī (d. 1290/1873–4), and Sayyid Muḥammad Ḥasan al-Shīrāzī, better known as al-Mīrzā al-Shīrāzī (d. 1312/1895), who issued the celebrated political fatwā against smoking tobacco in 1891. Al-Yazdī was also a contemporary of the prominent Shiʿi jurist Mullā Muḥammad Kāẓim al-Khurāsānī, better known as al-Ākhūnd al-Khurāsānī (d. 1329/1911). The two jurists disagreed on various ijtihādic and political matters, particularly regarding the Iranian Constitutional Revolution between 1905 and 1911. Al-Khurāsānī championed the revolution while al-Yazdī did not fully sympathise with it or, as some studies suggest, refused to support it. Ironically, together with several other religious authorities (marājiʿ), he issued and endorsed fatwās urging Muslims to defend their territories against Western colonisers, mainly Italy, Britain, and Russia (and later the Soviet Union) when they attacked Libya, Iraq, and Iran, respectively. He published several books or treatises, among which three are highly influential in Shiʿi legal scholarship:
(1) al-ʿUrwa al-wuthqā, a legal manual in Arabic that discusses 3,260 legal problems. It is popular among Shiʿi clerics, many of whom sought to demonstrate their mastery of ijtihādic practices/ability by writing critical commentaries or glosses on this book. Thus far, more than 300 commentaries have been published (see Pūrān Bāqirī Afshār, “Muʿarrifi-yi ḥawāshī, shurūḥ, wa-taʿlīqāt bar al-ʿUrwa al-wuthqā”, Faṣlnama-yi Naqd-i Kitāb-i Fiqh wa-Ḥuqūq, 3:9–10, [1396sh/2017], 207–26).
(2) Ḥāshiyat al-Makāsib al-muḥarrama: The original manuscript is preserved in the library of Bunyād-i Muḥaqqiq-i Ṭabāṭabāʾī in Qum, Iran, under the number 19, without pagination. It is written on a medium-size notebook with 288 folios (576 folio pages): the writing begins at fol. 1b and ends at fol. 286b. The discussion of khunthā and mamsūḥ is found on fol. 26a and b. I am grateful to the author’s great-great grandson, ʿAlī Ṭabāṭabāʾī, the current director of this library, for providing me with a copy of the manuscript in a pdf file. The book is used in traditional seminaries, including in Najaf and Qum, and is now available in several published editions. The Majlis Library in Tehran holds a manuscript titled Taʿlīqāt bar Makāsib, no. 8385, and has 534 folio pages; it is described as the original manuscript written by al-Yazdī, although the attribution is questionable, given that the script of the Majlis manuscript differs from that of other surviving manuscripts more definitively identified as his, such as al-ʿUrwa al-wuthqā (see Figures 2, 3, 4). Note that the Majlis manuscript is missing a line and a half from the beginning of the discussion on khunthā and mamsūḥ. In this study, my citation of this source relies on the following publications: (a) the original manuscript—identified as original ms.; (b) a lithographic version of the book with the following bibliographic data: Ḥāshiyat al-Makāsib, Tehran: Dār al-Maʿārif al-Islāmiyya and Qum: Muʾassassat Dār al-ʿIlm, 1378/1959—identified as lit.; this version has been set in type and published as Ḥāshiyat al-Makāsib, Qum: Ismāʿīliyān, 1370sh; and (c) an edited version of the book with the following bibliographic data: Ḥāshiyat kitāb al-Makāsib, Qum: Muʾassasat Ṭayyiba li Iḥyaʾ al-Turāth, 1429/2008—identified as Ṭayyiba.
(3) Ḥāshiyat Farāʾid al-uṣūl, edited and compiled by al-Yazdī’s pupil, Muḥammad Ibrāhīm al-Yazdī (Qum: Dār al-Hudā, 1426/2005). A similar book, entitled Ḥāshiya-yi Rasāʾil-i shaykh-i Anṣārī (compiled by ʿAbd al-Rasūl al-Sābāṭī al-Yazdī, based on al-Ṭabāṭabāʾī al-Yazdī’s lectures) was edited by Riḍā Ustādī and published in 1377sh by Muʾassasa-yi dar Rāh-i Ḥaqq in Qum. This manuscript contains four volumes that are preserved at the library of Āyatallāh al-Marʿashī al-Najafī in Qum. Ustādī edited and published only the first volume, and to my knowledge, the other three volumes are yet to be published. Although this first volume contains the discussion of intersexuality, based on a comparison between this volume and the compilation of Ibrāhīm al-Yazdī, I have determined that the latter is more comprehensive and is better structured. In this study, I use only Ibrāhīm al-Yazdī’s compilation.
The last two books of al-Yazdī are glosses on two textbooks of al-Shaykh Murtaḍā al-Anṣārī (d. 1281/1864); the modern paradigm of Imāmī ijtihād is often identified with al-Anṣārī’s school of legal theory. Although al-Yazdī offers several explanatory comments to elaborate on the nuances of al-Anṣārī’s views, he often offers his own opinions. Hence, his works can properly be classified as critical commentarial glosses. In this study, I examine al-Yazdī’s account on intersex topics in the following two legal books: Ḥāshiyat al-Makāsib al-muḥarrama and Ḥāshiyat Farāʾid al-uṣūl. For a comprehensive list of his academic works, see Kāmil Salmān al-Jabūrī, al-Sayyid Kāẓim al-Yazdī (Qum: Dhawi l-Qurbā, 1385sh), 138–50; Ustādī, “Muqaddima-yi muḥaqqiq”, Ḥāshiya-yi Rasāʾil-i shaykh-i Anṣārī (Qum: Muʾassasa-yi dar Rāh-i Ḥaqq, 1377sh), 6–18. There are few analyses of al-Yazdī’s scholarship in English. Dashti discusses al-Yazdī’s thought and role in the Shiʿi resistance in Iraq, although he bases his discussion on the previously mentioned study of al-Jabūrī (see Eissa Dashti, The Shiite Resistance against the British Occupation in Iraq 1914–1921 [Ph.D. Thesis, Bangor: Bangor University, 2017]).
In this study, I often use “intersex” as an adjective when accompanied by a noun, such as people, individuals, and persons. Otherwise, I italicise the term. In addition, when I use “intersex” as a third category of humankind, I treat it as a noun. Thus, as with the categories “male” and “female”, I use “intersex” without italics or an accompanying noun.
Sanders uses these terms with the full understanding that it is anachronistic to apply a modern conceptualisation of “intersex” to classical Muslim legal literature. She uses the term “gendering” to define the way in which classical Muslim jurists “constructed the khunthā mushkil … as a social person” (Sanders, “Gendering the Ungendered Body”, 79).
See, for example, Gayle Rubin, “The Traffic in Women: Notes on fhe ‘Political Economy’ of Sex”, in Ellen Lewin (ed.), Feminist Anthropology: A Reader (Oxford: Wiley-Blackwell, 2006 [1975]), 87–106; Kate Millett, Sexual Politics (New York: Columbia University Press, 2016), 28–31; Claire Renzetti and Daniel Curran, “Sex-Role Socialization”, in Janet Kourany, James Sterba, and Rosemarie Tong (eds.), Feminist Philosophies (Englewood, NJ: Prentice Hall, 1992), 31–47; Nancy Chodorow, “Family Structure and Feminine Personality”, in Nancy Tuana and Rosemarie Tong (eds.), Feminism and Philosophy: Essential Readings in Theory, Reinterpretation, and Application (New York: Routledge, 2018 [1995]), 199–216; Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), chaps. 7 and 12. Also see Simone de Beauvoir, The Second Sex, trans. Constance Borde and Sheila Malovany-Chevallier, (New York: Random House, 2011 [1949]); Judith Butler, “Performative Acts and Gender Constitution”, in Henry Bial (ed.), The Performance Studies Reader (London: Routledge, 2004 [1990]), 154–66; and idem, Bodies That Matter: On the Discursive Limits of Sex (London: Routledge, 2011 [1993]).
For example, some scholars critique studies of gender that ignore the influence of nationality, ethnicity, and, race (Elizabeth V. Spelman, Inessential Woman [Boston: Beacon Press, 1988]; Butler, Gender Trouble, chap. 1). Others object to the classification of sex as a matter of biology without social or cultural meaning (Anne Fausto-Sterling, “The Five Sexes: Revisited”, The Sciences, [July–August 2000], 18–23). According to Fausto-Sterling, the binary notion of sex fails to include individuals with sex characteristics that do not fall into male and female categories (Anne Fausto-Sterling, “The Five Sexes: Why Male and Female Are Not Enough”, The Sciences, 33 [1993], 20–24). Butler holds that, like gender, sex is culturally constructed, and thus the distinction between the two is not appropriate (Judith Butler, Gender Trouble, 10–11). Other scholars hold that the sex/gender distinction is useless (Toril Moi, What Is a Woman? [Oxford: Oxford University Press, 1999], chap. 1; Tomas Bogardus, “Evaluating Arguments for the Sex/Gender Distinction”, Philosophia, 48 [2020], 873–92). There are other theories on sex and gender, including: sex/gender nominalism (Iris Marion Young, “Gender as Seriality: Thinking about Women as a Social Collective”, in I. M. Young (ed.), Intersecting Voices [Princeton: Princeton University Press, 1997], 12–37), the positionality approach (Linda Alcoff, Visible Identities [Oxford: Oxford University Press, 2006], chap. 5); and the beyond-binary position offered by queer theorists (Robin Dembroff, “Beyond Binary: Genderqueer as Critical Gender Kind”, Philosopher’s Imprint, 20 [2020], 1–23). For a review of different positions and controversies on this topic, see Mari Mikkola, “Feminist Perspectives on Sex and Gender”, in Edward N. Zalta and Uri Nodelman (eds.), The Stanford Encyclopedia of Philosophy (Summer 2024 Edition).
Butler, Gender Trouble, chap. 1: 3–44.
Everett K. Rowson, “The Effeminates of Early Medina”, Journal of the American Oriental Society, 111:4 (1991), 671–93; Mehrdad Alipour, Negotiating Homosexuality in Islam: A Legal-Hermeneutical Examination of Modern Shiʿi Discourse (Leiden: Brill, 2024), 107–13.
Franz Rosenthal, “Ar-Razi on the Hidden Illness”, Bulletin of the History of Medicine, 52:1 (1978), 45–60, at 54–55.
Aristotle, “Politics”, in Jonathan Barnes (ed.), The Complete Works of Aristotle: The Revised Oxford Translation, trans. Benjamin Jowett (Princeton: Princeton University Press, 2016), Book I: 3, 1253a7–18. Also, see Kristin Andrews and Susana Monsó, “Animal Cognition”, in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Spring 2021 Edition). Accessed April 2024: https://plato.stanford.edu/archives/spr2021/entries/cognition-animal/. Kietzmann does not attribute this common definition of ‘human’ to Aristotle (Christian Kietzmann, “Aristotle on the Definition of What It Is to Be Human”, in Keil, Geert and Kreft, Nora (eds.), Aristotle′s anthropology [Cambridge: Cambridge University Press, 2021], 25–43).
According to this definition, “being animal” is also an essential element, referred to as ‘genus’ (jins), that humans share with other beasts. See, for example, Ibn Sīnā, Dānishnāma-yi ʿalāʾī (Hamadan: Dānishgāhi Bū ʿĀlī Sīnā, 1383sh), 26; Naṣīr al-Dīn al-Ṭūsī, Asās al-iqtibās (Tehran: Intishārāt-i Dānishgāh-i Tehran, 1367sh), 29.
Al-Ṭūsī, Asās al-iqtibās, 30; Quṭb al-Dīn al-Shīrāzī, Durrat al-tāj (Tehran: Intishārāt-i Ḥikmat, 1369sh), 38; Muḥammad Riḍā al-Muẓaffar, al-Manṭiq (Qum: Muʾassasat al-Nashr al-Islāmī), 96–97; ʿAlī Kāshif al-Ghiṭāʾ, Naqd al-ārāʾ al-manṭiqiyya wa-ḥallu mushkilātihā, 2 vols. (Beirut: Muʾassasat al-Nuʿmān li-l-Ṭibāʿa wa-l-Nashr, 1411), 1: 132–33.
See, for example, Abū Muḥammad ʿAbd al-Ḥaqq Ibn ʿAṭiyya (d. 542/1147–48), al-Muḥarrar al-wajīz fī tafsīr al-kitāb al-ʿazīz, 6 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1422/2001), 2: 4; Abū Bakr Ibn al-ʿArabī (d. 543/1148–49), Aḥkām al-Qurʾān, 4 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1424/2003), 4: 99; Muḥammad b. Aḥmad al-Qurṭubī (d. 671/1273), al-Jāmiʿ li-aḥkām al-Qurʾān, 20 vols. (Cairo: Dār al-Kutub al-Miṣriyya, 1384/1964), 5: 2. These exegetes (mufassirūn), relying on Q. 4:1 and Q. 92:3, often hold that the human race consists of two types: males and females. Thus, in their view, khunthās do not constitute a distinct type but belong either to the male type or the female type. The exegete Makkī ibn Abī Ṭālib (d. 437/1045) also regards humans as either male or female and does not recognise a third category, although he does not use the term type (Makkī ibn Abī Ṭālib, al-Hidāya ilā bulūgh al-nihāya fī ʿilm maʿānī l-Qurʾān wa-tafsīrih wa-aḥkāmih wa-jumal min funūn ʿulūmih, 13 vols. [Sharjah: Kulliyyat al-Sharīʿa wa-l-dirāsāt al-Islāmiyya–Jāmiʿat al-Sharjah, 1429/2008], 2: 211). Nevertheless, the Mālikī jurist and exegete Abū Bakr Ibn al-ʿArabī presents a different opinion in this regard (see footnote 64). In the Shiʿi context, classical exegetes, such as ʿAlī b. Ibrāhīm al-Qummī (d. after 307/919), Muḥammad b. Masʿūd al-ʿAyyashī (d. perhaps 320/932), al-Shaykh al-Ṭūsī (d. 460/1067), and al-Faḍl b. al-Ḥasan al-Ṭabrisī (d. 548/1154), in their discussions of relevant verses about the creation of male and female, such as Q. 4:1, Q. 42:49, and Q. 92:3, do not address the category of khunthā.
On qism, see, for example, Muḥammad b. Aḥmad Ibn Idrīs al-Ḥillī, al-Sarāʾir al-ḥāwī li-taḥrīr al-fatāwī, 3 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1410/1386sh), 3: 281; Yaḥyā b. Sharaf al-Nawawī (d. 676/1277), al-Majmūʿ Sharḥ al-Muhadhdhab, 20 vols. (Beirut: Dār al-Fikr, 1990), 2: 47. On ṭabīʿa, see, for example, Shams al-Dīn Muḥammad b. Makkī al-ʿĀmilī, al-Durūs al-sharʿiyya fī fiqh al-imāmiyya, 3 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1417), 2: 379; Zayn al-Dīn b. ʿAlī al-Jubaʿī al-ʿĀmilī, al-Rawḍa al-bahiyya fī sharḥ al-Lumʿa al-dimashqiyya fī fiqh al-imāmiyya, 2 vols. (Qum: Intishārāt-i Daftar-i Tablīqāt-i Islāmī, 1412/1373sh), 2: 332. On khalq, see, for example, Shams al-Dīn Muḥammad al-Ḥaṭṭāb al-Ruʿaynī al-Mālikī (d. 954/1547), Mawāhib al-jalīl fī sharḥ Mukhtaṣar al-Khalīl, 6 vols. (Beirut: Dār al-Fikr, 1412/1992), 6: 424. On jins, see, for example, Muḥammad b. Aḥmad al-Sarakhsī, al-Mabsūṭ, 30 vols. (Beirut: Dār al-Maʿrifa, 1414/1993), 13: 13.
For example, al-Rāzī alludes to both biological and behavioural characteristics to classify categories of humankind (Rosenthal, “Ar-Razi on the Hidden Illness”, 54).
For example, jurists propose a taxonomy of males and females in which each category is divided into two groups: free males and enslaved males, and free females and enslaved females. This is followed by another subdivision, categorising each group of free and enslaved males, as well as free and enslaved females, as either Muslims or non-Muslims. These taxonomies can be extended by considering, for instance, whether or not a non-Muslim male or female can be identified as the People of the Book (ahl al-kitāb).
Al-Sarakhsī, al-Mabsūṭ, 10: 158; Muwaffaq al-Dīn Abū Muḥammad Ibn Qudāma al-Maqdisī (d. 620/1223), al-Mughnī, 10 vols. (Cairo: Maktabat al-Qāhira, 1388/1968), 7: 104; Ḥasan b. Yūsuf al-Ḥillī (ʿAllāma), Tadhkirat al-fuqahāʾ, 2 vols. (Tehran: al-Maktabat al-Murtaḍawiyya li-Iḥyāʾ al-Āthār al-Jaʾfariyya, 1388), 2: 574; ʿAlī b. Ḥusayn ʿAbd al-ʿĀlī al-Karakī, Jāmiʿ al-maqāṣid fī sharḥ al-Qawāʿid, 13 vols. (Qum: Muʾassasat Āl al-Bayt li-Iḥyāʾ al-Turāth, 1414), 12: 36. It is important to note that neither the mukhannathūn nor the mutarrajjilāt consider themselves as members of the opposite category, nor does Muslim society place them in it (Geissinger, “Applying Gender and Queer Theory to Pre-modern Sources”, 103).
For the ḥadīths on this matter, see Alipour, Negotiating Homosexuality, 110, n. 87.
Ibid. Also, see Murtaḍā al-Anṣārī, Makāsib al-muḥarrama, 6 vols. (Qum: al-Majmaʿ al-Fikr al-Islāmī, 1420), 1: 173–75.
Ḥasan b. Yūsuf al-Ḥillī (ʿAllāma), Taḥrīr al-aḥkām al-sharʿiyya ʿalā madhhab al-imāmiyya, ed. Ibrāhīm al-Bahādurī, 5 vols. (Qum: Muʾassasat al-Imām al-Ṣādiq, 1422), 1: 129–30; Najm al-Dīn Jaʿfar b. Ḥasan al-Ḥillī (Muḥaqqiq), Sharāʾiʿ al-islām fī masāʾil al-ḥalāl wa-l-ḥarām, 4 vols. (Qum: Nashr-i Istiqlāl, 1409/1367sh), 1: 96; Aḥmad al-Muqaddas al-Ardabīlī, Majmaʿ al-fāʾida wa-l-burhān fī sharḥ Irshād al-adhhān. ed. Mujtabā al-ʿIrāqī, ʿAlīpanāh al-Ishtihārdī, and Ḥusayn al-Yazdī, 14 vols. (Qum, Iran: Muʾassasat al-Nashr al-Islāmī, 1422), 2: 446–47.
By “medical,” these jurists often refer to the classical Muslim medical tradition, primarily the works of Zakariyyā al-Rāzī, Ibn Sīnā, and Abū al-Qāsim al-Zahrāwī.
Sanders, “Gendering the Ungendered Body”, 79–80.
Gesink, “Intersex Bodies”, 156.
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 225.
Muḥammad b. Ḥasan b. Yūsuf al-Ḥillī (Fakhr al-Muḥaqqiqīn), Iḍāḥ al-fawāʾid fī sharḥ mushkilāt al-Qawāʿid, 4 vols. (Qum: Muʾassasa-yi Ismāʿīliyān, 1387), 4: 250.
Estimates of the proportion of intersex people in the population range from 0.018% to 1.7%. Anne Fausto-Sterling suggests the higher number, counting as intersex “all live births that do not conform to a Platonic ideal of absolute sex chromosome, gonadal, genital, and hormonal dimorphism” (Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality [New York: Basic Books, 2000], 53).
See Michelle M. Sauer, Gender in Medieval Culture (London: Bloomsbury Academic, 2015); Fausto-Sterling, Sexing the Body; Joan Cadden, Meanings of Sex Difference in the Middle Ages Medicine, Science, and Culture (Cambridge University Press, 1995); Ruth Mazo Karras, Sexuality in Medieval Europe: Doing unto Others (London: Routledge, 2012); Thomas Laqueur, Making Sex: Body and Gender from the Greeks to Freud (Cambridge, MA: Harvard University Press, 1992); Cary J. Nederman and Jacqui True, “The Third Sex: The Idea of the Hermaphrodite in Twelfth-Century Europe”, Journal of the History of Sexuality, 6:4 (1996), 497–517; Miri Rubin, “The Person in The Form: Medieval Challenges to Bodily Order”, in Sarah Kay and Miri Rubin (eds.), Framing Medieval Bodies (Manchester University Press, 1996), 100–22.
Medical specialists and activists almost unanimously avoid using the term “hermaphrodite”, as it tends to stigmatise intersex people and confuse non-professionals, including those with intersex conditions and their families; see Charles Armstrong, “Intersexuality in Man”, Intersexuality in Vertebrates including Man, (1964), 349–93; John Dewhurst and Ronald R. Gordon, The Intersexual Disorders (London: Tindall & Cassell, 1969), 1–5; Alice D. Dreger, Cheryl Chase, Aron Sousa, Philip A. Gruppuso, and Joel Frader, “Changing the Nomenclature/Taxonomy for Intersex: A Scientific and Clinical Rationale”, Journal of Pediatric Endocrinology and Metabolism, 18:8 [2005], 732).
ohchr, Background Note on Human Rights (United Nations: Human Rights Office of the High Commissioner, 2019), 2, Accessed March 2024: https://www.ohchr.org/en/documents/tools-and-resources/background-note-human-rights-violations-against-intersex-people; Monro and colleagues briefly address the UN Office for the Commissioner of Human Rights’s definition of intersex (Surya Monro et al, “Intersex: Cultural and Social Perspectives”, Culture, Health and Sexuality, 23:4 [2021], 433). Also see Dan Christian Ghattas, “Protecting Intersex People in Europe: A Toolkit for Law and Policy Makers”, oii Europe, (2023[2019]), 9, Accessed March 2024: https://www.oiieurope.org/wp-content/uploads/2019/05/Protecting_intersex_in_Europe_toolkit.pdf. According to the Intersex Society of North America (isna), “Intersex is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male” (Intersex Society of North America, “What Is Intersex?”, Accessed March 2024: https://isna.org/faq/what_is_intersex/). Although isna dissolved itself in 2008, its website remains available and its two successor organisations also host the same content: Accord Alliance, www.accordalliance.org and InterACT: Advocates for Intersex Youth, https://interactadvocates.org, “What Is Intersex?”
In 2006, the Lawson Wilkins Pediatric Endocrine Society (lwpes) and the European Society for Paediatric Endocrinology (espe) in a consensus statement re-examined the existing nomenclature and proposed the following suggestion: “Terms such as intersex, pseudohermaphroditism, hermaphroditism, sex reversal, and gender based diagnostic labels are particularly controversial. These terms are received as potentially pejorative by patients, and can be confusing to practitioners and parents alike. The term “disorders of sex development” (dsd) instead is proposed, as defined by congenital conditions in which development of chromosomal, gonadal, or anatomical sex is atypical” (Ieuan A. Hughes, Chris Houk, S. Faisal Ahmed, Peter A. Lee, and Lawson Wilkins Pediatric Endocrine Society, “Consensus Statement on Management of Intersex Disorders”, Journal of Pediatric Urology, 2:3 [2006], 554).
Consortium on the Management of Disorders of Sex Development, Clinical Guidelines for the Management of Disorders of Sex Development in Childhood (Intersex Society of North America, 2006), 2, Accessed March 2024: https://dsdguidelines.org. The same guidelines also provide a comprehensive list of over twenty intersex conditions, 5–7. Some medically non-technical lists can be found in the following sources: American Psychological Association, “Intersex”: https://dictionary.apa.org/intersex; Intersex Society of North America, “Intersex Conditions”: https://isna.org/faq/conditions/; MedlinePlus, “Intersex”: https://medlineplus.gov/ency/article/001669.htm#:~:text=Differences%20of%20sex%20development%20(DSD,an%20older%20term%20for%20DSD. The medical names of each condition often vary depending on the medical experts, type of studies undertaken, and language used.
See, for example, Marie-Noëlle Baecheler, “Letter to the Editor: Children Are Not Disorders”, Archives of Disease in Childhood, (2006), Accessed July 2024: https://adc.bmj.com/content/91/7/554.responses#children-are-not-disorders; David Cameron, “Letter to the Editor: Re: Variations of Sex Development instead of Disorders of Sex Development”, Archives of Disease in Childhood, (2006), Accessed July 2024: https://adc.bmj.com/content/91/7/554.responses#children-are-not-disorders; Milton Diamond and Hazel G. Beh, “Letter to the Editor: Variations of Sex Development Instead of Disorders of Sex Development”, Archives of Disease in Childhood, (2006), Accessed July 2024: https://adc.bmj.com/content/91/7/554.responses#children-are-not-disorders). Also see the documents on the website of The Organisation Intersex International (oii): www.intersexualite.org/Disorders_of_Sex_Development.html. For a comprehensive overview of the controversies on dsd terminology, see Ellen K. Feder and Katrina Karkazis, “What’s in a Name? The Controversy over “Disorders of Sex Development”’, Hastings Center Report, 38:5 (2008), 34–36.
See Diamond and Beh, “Variations of Sex Development”; Elizabeth Reis, “Divergence or Disorder?: The Politics of Naming Intersex”, Perspectives in Biology and Medicine, 50:4 (2007), 535–43.
See Abū ʿAbd al-Raḥmān al-Khalīl b. Aḥmad al-Farāhīdī, Kitāb al-ʿayn, ed. Mahdī al-Makhzūmī and Ibrāhīm al-Sāmarrāʾī, 8 vols. (Baghdad: Dār al-Rashād, 1980), 4: 248; Abū Naṣr Ismāʿīl al-Jawharī, al-Ṣiḥāḥ tāj al-lugha wa-ṣiḥāḥ al-ʿarabiyya, ed. Aḥmad ʿAbd al-Ghafūr ʿAṭṭār, 6 vols. (Beirut: Dār al-ʿIlm li-l-Malāyin, 1407/1986–7), 1: 281; Muḥammad b. al-Ḥasan b. Durayd al-Azdī, Jamharat al-lugha, ed. Ramzī Munīr Baʿlbakī, 3 vols. (Beirut: Dār al-ʿIlm li-l-Malāyīn, 1987), 1: 418; Muḥammad b. Aḥmad al-Azharī, Tahdhīb al-lugha, 15 vols. (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 2001), 7: 145; Aḥmad b. Muḥammad b. ʿAlī al-Fayyūmī, al-Miṣbāḥ al-munīr fī gharīb al-sharḥ al-kabīr, 2 vols. (Beirut: al-Maktaba al-ʿIlmiyya, 1994), 1: 183; Muḥammad b. Mukarram b. Manẓūr, Lisān al-ʿarab, 15 vols. (Beirut: Dār Ṣādir li-l-Ṭibāʿa wa-l-Nashr, 1414), 2: 145; Muḥammad Murtaḍā al-Zabīdī, Tāj al-ʿarūs min jawāhir al-Qāmūs, ed. ʿAbd al-ʿAzīz Maṭar, 40 vols. (Kuwait: Maṭbaʿat Ḥukūmat al-Kuwait, 1414/1994), 5: 240–42.
Al-Jawharī, al-Ṣiḥāḥ, 1: 281.
For example, al-Azharī (d. 370/980) repeats al-Jawharī’s definition of khunthā (al-Azharī, Tahdhīb al-lugha, 7: 145). Al-Fayyūmī (d. 770/1368), however, describes a khunthā as a person who has both a vulva (farj al-marʾa) and a penis (farj al-rajul) (al-Fayyūmī, al-Miṣbāḥ al-munīr, 1: 183). Like al-Khalīl, Ibn Manẓūr (d. 711/1311–2) defines khunthā as a person who is not exclusively a female or a male, suggesting that khunthās cannot always be categorised as male or female: in some cases, they belong to a distinct category separate from both male and female. Ibn Manẓūr explains that the term khunthā can be applied either as an adjective (and thus it makes sense to say a “khunthā man”, which means a male individual who has both male and female sexual organs) or as a noun without qualification, namely, using khunthā alone, which implies a person who has biological signs of a male and female, such as a beard and breasts (Ibn Manẓūr, Lisān al-ʿarab, 2: 145).
See, for example, al-Nawawī, al-Majmūʿ, 2: 46–47; al-Sarakhsī, al-Mabsūṭ, 30: 91; Abū l-Ḥusayn ʿAlī b. al-Ḥusayn b. Muḥammad al-Sughdī, al-Nutaf fī l-fatāwā, ed. Ṣalāḥ al-Dīn al-Nāhī, 2 vols. (Amman: Dār al-Furqān/Beirut: Muʾassasat al-Risāla, 1404/1984), 2: 857–58; Abū l-Ḥasan ʿAlī b. Muḥammad al-Māwardī al-Baṣrī, al-Ḥāwī l-kabīr fī fiqh madhhab al-imām al-Shāfiʿī, 18 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1419/1999), 8: 108. However, several Sunni legal experts refer to khunthā as people with both male and female genitalia: see, for example, Abū Muḥammad ʿAbd al-Wahhāb b. ʿAlī al-Thaʿlabī al-Mālikī al-Baghdādī, al-Maʿūna ʿalā madhhab ʿālim al-madīna “al-Imām Mālik b. Anas”, ed. Ḥamīsh ʿAbd al-Ḥaqq, 3 vols. (Makka: al-Maktaba al-Tijāriyya, 1995), 3: 657; Abū l-Ḥusayn Aḥmad b. Muḥammad al-Qudūrī al-Ḥanafī al-Baghdādī, Mukhtaṣar al-Qudūrī fī l-fiqh al-Ḥanafī, ed. Muḥammad Muḥammad ʿAwīḍa (Beirut: Dār al-Kutub al-ʿIlmiyya, 1418/1997), 137; ʿAlī b. Abī Bakr b. ʿAbd al-Jalīl al-Marghīnānī, al-Hidāya fī sharḥ Bidāyat al-mubtadī, ed. Ṭalāl Yūsuf, 4 vols. (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 2010), 4: 546.
See, for example, Jaʿfar Kāshif al-Ghiṭāʾ, Kashf al-ghiṭāʾʿan mubhamāt al-sharīʿa al-gharrāʾ, 4 vols. (Mashhad: Maktab al-Iʿlām al-Islāmī, 1380sh), 1: 233–34; Muḥammad Jawād al-Ḥusaynī al-ʿĀmilī, Miftāḥ al-karāma fī sharḥ Qawāʿid al-ʿAllāma, 11 vols. (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, n.d.), 1: 113 and 3: 139; Muḥammad Ḥasan al-Najafī, Jawāhir al-kalām fī sharḥ Sharāʾiʿ al-islām, ed. ʿAbbās al-Qūchānī, 43 vols. (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī,1981), 2: 6 and 3: 8; Murtaḍā b. Muḥammad Amīn al-Anṣārī, Kitāb al-ṭahāra, 5 vols. (Qum: Majmaʿ al-Fikr al-Islāmī, 1415), 3: 326; Mīr ʿAbd al-Fattāḥ al-Ḥusaynī al-Marāghī, al-ʿAnāwīn al-fiqhiyya, 2 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1417), 1: 38; Sayyid Kāẓim al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, compiled by Muḥammad Ibrāhīm al-Yazdī, 3 vols. (Qum: Dār al-Hudā, 1426), 1: 225. The term mamsūḥ signifies “effaced”, “rubbed off”, and “smoothed”. According to Ibn Manẓūr, people who have no genitalia are called mamsūḥ because it was thought that due to the lack of genitals, the inner sides of their thighs would rub against each other and become smooth (Ibn Manẓūr, Lisān al-ʿarab, 2: 593–5). Although the term mamsūḥ for intersex people apparently is not used in Sunni legal schools, it has been applied to a group of castrated people—that is, eunuchs—in both the Sunni and Shiʿi legal traditions. To briefly explain, discussions of eunuchs were raised in relation to several juristic topics, including fasting, prayer, purity, pilgrimage, retaliation, and compensation. There are three types of eunuchs: (1) a male who is castrated by removing his testicles or causing them no longer to function is called khāṣī; (2) a male who is castrated by the removal of his penis while the testicles still remains is often called majbūb or, occasionally, al-khāṣī al-majbūb; and (3) a male who is castrated by the removal of both his penis and testicles is often named mamsūḥ or, occasionally, al-khāṣī al-mamsūḥ. Nevertheless, the definition and usage of these terms are highly contested among jurists. For definition of khāṣī, see Multiple unknown authors, al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya, 45 vols. (Kuwayt: Wazārat al-ʾAwqāf wa-l-Shuʾūn al-Islāmiyya, 1404–1427), 39: 51–52; Abū Ḥāmid Muḥammad al-Ghazalī, al-Wasīṭ fī l-madhhab, ed. Aḥmad Maḥmūd Ibrāhīm and Muḥammad Muḥammad Tāmir, 7 vols. (Cairo: Dār al-Salām, 1417), 6: 109; Shams al-Dīn Muḥammad b. Makkī al-ʿĀmilī, al-Lumʿa al-dimashqiyya fī fiqh al-imāmiyya (Qum: Dār al-Fikr, 1411), 50; al-Karakī, Jāmiʿ al-Maqāṣid, 12: 36; Āqā Ḥusaym al-Khānsārī, Takmīl mashāriq al-shumūs fī sharḥ al-Durūs (Qum: Muʾassasat Āl al-Bayt li Iḥyāʾ al-Turāth, 1311), 417; Yusūf al-Baḥrānī, al-Ḥadāʾiq al-nāḍira fī aḥkām al-ʿItra al-Ṭāhira, 25 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1409), 13: 162; Aḥmad al-Narāqī, al-Ḥāshiya ʿalā l-Rawḍa al-bahiyya fī sharḥ al-Lumʿa al-dimashqiyya fī fiqh al-imāmiyya (Qum: Muʾassasat al-Nashr al-Islāmī, 1425), 442. On sources in English about eunuchs in Islamic law and society, see David Ayalon, Eunuchs, Caliphs and Sultans: A Study of Power Relationships (Jerusalem: Magnes Press, Hebrew University, 1999); idem, Outsiders in the Lands of Islam: Mamluks, Mongols and Eunuchs (London: Variorum Reprints, 1988), 67–124; Shaun Marmon, Eunuchs and Sacred Boundaries in Islamic Society (Oxford: Oxford University Press, 1995); Serena Tolino, “Eunuchs in the Sunnī Legal Discourse: Reflections on the Gender of Castrated Men”, Studi Magrebini, 20:2 (2022), 117–36; Glaire D. Anderson, “16 Concubines, Eunuchs, and Patronage in Early Islamic Córdoba”, in Therese Martin (ed.), Reassessing the Roles of Women as ‘Makers’ of Medieval Art and Architecture (Leiden: Brill, 2012), 650–64. It is striking that none of these scholars mentions the term mamsūḥ in this context, despite the fact that it was frequently discussed by classical Sunni and Shiʿi jurists.
ʿAbd al-ʿAzīz Ibn al-Barrāj, al-Muhadhdhab, 2 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1406), 2: 171–72.
For Sunni legal sources on primary and secondary markers, see al-Marghīnānī, al-Hidāya, 4: 546; Ibn Qudāma al-Maqdisī, al-Mughnī, 6: 336; al-Sughdī, al-Nutaf, 2: 858; al-Sarakhsī, al-Mabsūṭ, 30: 92. For Shiʿi sources, see Ḥasan b. Yūsuf al-Ḥillī (ʿAllāma), Mukhtalaf al-shīʿa fī aḥkām al-sharīʿa, 9 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1374sh), 9: 95–96; idem, Qawāʿid al-aḥkām, 3 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1419), 3: 383; al-Ḥillī (Fakhr al-Muḥaqqiqīn), Iḍāḥ al-fawāʾid, 4: 249; Niẓām al-Dīn Sāwujī, Jāmiʿ ʿabbāsī (takmila), 2 vols. (Tehran: Farāhānī, 1350sh), 2: 412; Bahāʾ al-Dīn Muḥammad b. Ḥasan al-Fāḍil al-Hindī, Kashf al-lithām wa-l-ibhām ʿan Qawaʿid al-ahkām, 11 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1416), 9: 485; Ḥusaynī al-ʿĀmilī, Miftāḥ al-karāma, 8: 219; Aḥmad b. Muḥammad al-Narāqī, Mustanad al-shīʿa, 19 vols. (Qum: Muʾassasat Āl al-Bayt li-Iḥyāʾ al-Turāth, 1415), 19: 441; Muḥammad Ḥasan al-Najafī, Jawāhir al-kalām, 39: 281. Classical Shiʿi jurists, except for Ibn Abī ʿAqīl al-ʿUmānī (late ninth/early tenth century), rarely addressed such secondary markers (al-Ḥillī [ʿAllāma], Mukhtalaf al-shīʿa, 9: 94). Some classical jurists such as al-ʿĀmilī refer to these signs but consider them as invalid markers for the assessment of intersex conditions (al-ʿĀmilī, al-Durūs, 2: 378–79) and some, such as al-Jubaʿī al-ʿĀmilī, do not even address secondary markers (al-Jubaʿī al-ʿĀmilī, al-Rawḍa al-bahiyya, 2: 331–34).
See, for example, al-Nawawī, al-Majmūʿ, 2: 47–50; al-Sarakhsī, al-Mabsūṭ, 30: 103–5; Maḥmūd b. Aḥmad Badr al-Dīn al-ʿAynī (d. 855/1451), al-Bināya sharḥ al-Hidāya, ed. Ayman Ṣāliḥ Shaʿbān, 13 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1420/2000), 13: 528–30; al-Ḥillī (ʿAllāma), Mukhtalaf al-shīʿa, 9: 95–96 and Qawāʿid al-aḥkām, 3: 382–83; al-Ḥillī (Fakhr al-Muḥaqqiqīn), Iḍāḥ al-fawāʾid, 4: 249–50.
Scholars writing in English about intersexuality in Islam have translated the term mushkil in different ways, including: “ambiguous” (Sanders, “Gendering the Ungendered Body”, 77; Scalenghe, Disability, 161); “mixed” (Haidar Ali Hamoudi, “Sex and the Shariʿa: Defining Gender Norms and Sexual Deviancy in Shiʿi Islam”, Fordham International Law Journal, 39:1 [2015], 25–99, at 80); “problematic” or “troublemaker” (Gertrude Kohn et al., “Male Pseudohermaphroditism due to 17b-Hydroxysteroid Dehydrogenase Deficiency (17b;-hsd) in a Large Arab Kinship”, Journal of Pediatric Endocrinology, 1:1 [1985], 29–38, at 35); and “ungendered” or “real”, as in gonadal dysgenesis (Rispler-Chaim, Disabilities, 44, 73). Gesink prefers the term “complex”, asserting that a khunthā mushkil is “a complex of male and female and posed a series of legal complexities for jurists to resolve” (“Intersex Bodies”, 156). Previously, I used the terms “indeterminate” intersex to refer to khunthā mushkil and “determinate” intersex to refer to khunthā ghayr al-mushkil (Alipour, “The Nexus between Gender-Confirming Surgery and Illness”, 362 and “Transgender Identity”, 166). However, the terms “difficult” or “complicated” are apparently closer to the concept of mushkil in Islamic legal discourse; that is, a khunthā mushkil is a person whose sex is complicated and thus difficult to determine and a khunthā ghayr al-mushkil is an individual whose sex is readily identifiable. Nevertheless, it is challenging to find a concept in English that fully captures the meaning of the term mushkil as used in the Islamic legal context. Therefore, I provide a detailed description of the term in the Islamic legal context when it is used for the first time and thereafter apply the Arabic term throughout the study.
For medical discourse, see Muḥammad b. Zakariyyā al-Rāzī, al-Ḥāwī fī l-ṭibb, 7 vols. (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1422/2002), 3: 192; Ibn Sīnā, al-Qānūn fī l-ṭibb, 4 vols. (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 2005), 3: 449; Abū l-Qāsim al-Zahrāwī [Albucasis], Kitāb al-taṣrīf li-man ʿajaza ʿan al-taʾlīf: al-maqāla al-thalāthūn: al-Jarāḥa (Riyadh: Maktabat al-Malik Fahd al-Waṭaniyya, 1422/2001), 306. For secondary sources, see Gesink, “Intersex Bodies”, 160–63; Scalenghe, “Disability in the Ottoman Arab World”, 132–36.
One ḥadīth refers to urination as a marker to determine the sex of a mamsūḥ: if a mamsūḥ releases urine suddenly and forcefully (naḥḥā), then he is a man, and if the mamsūḥ does not release it forcefully (lā yunaḥḥī/lā yatanaḥḥī) but rather dribbles it between the thighs, then she is a woman. This ḥadīth was collected by al-Kulaynī and al-Ṭūsī, although with slightly different isnāds. The chains of transmission are identical towards the end of the transmission line: both al-Kulaynī and al-Ṭūsī narrated it from Ḥasan b. ʿAlī b. Faḍḍāl from ʿAbdallāh b. Bukayr (a companion of the Sixth Imām, Jaʿfar b. Muḥammad al-Ṣādiq, although ʿAbdallāh b. Bukayr does not attribute this ḥadīth to this Imām), from a group of the companions of the Imāms, from the Imāms/one of the two Imāms. However, the chains of transmission are slightly different at the beginning of the lines: Al-Kulaynī transmits the ḥadīth from Muḥammad b. Yaḥyā [al-ʿAṭṭār al-Qummī], from Aḥmad b. Muḥammad [b. ʿIsā al-Ashʿarī al-Qummī], from Ḥasan b. ʿAlī b. Faḍḍāl, from ʿAbdallāh b. Bukayr, from a group of the companions, from one of the two Imāms (Muḥammad b. Yaʿqūb al-Kulaynī, al-Kāfī fī ʿilm al-dīn, ed. ʿAlī Akbar Ghaffārī, 8 vols. [Tehran: Dār al-Kutub al-Islāmiyya, 1367sh], 7: 157). Al-Ṭūsī, however, one time narrates the ḥadīth from ʿAlī b. al-Ḥasan b. ʿAlī b. Faḍḍāl, from [his brothers] Muḥammad and Aḥmad, from their father Ḥasan b. ʿAlī b. Faḍḍāl, from ʿAbdallāh b. Bukayr, from some of the companions, from the Imāms (Muḥammad Ḥasan al-Ṭūsī, al-Istibṣār fī-mā ukhtulifa min al-akhbār, ed. Ḥasan al-Khirsān, 4 vols. (Tehran: Dār al-Kutub al-Islāmiyya, 1363sh], 4: 187); and another time from Aḥmad b. Muḥammad [b. ʿĪsā al-Ashʿarī al-Qummī], from Muḥammad and Aḥmad, the sons of al-Ḥasan, from their father Ḥasan b. ʿAlī b. Faḍḍāl, from ʿAbdallāh b. Bukayr, from some of the companions, from the Imāms (Muḥammad b. Ḥasan al-Ṭūsī, Tahdhīb al-aḥkām, ed. Ḥusayn Khirsān, ʿAlī Ākhūndī, and Muḥammad Ākhūndī, 10 vols. [Tehran: Dār al-Kutub al-ʿIlmiyya, 1365sh], 9: 357). In al-Kulaynī’s chain, the ḥadīth is attributed to “one of the two Imāms”, whereas al-Ṭūsī attributes it to “the Imāms”. Although ʿAbdallāh b. Bukayr was a companion of the Sixth Imām, he does not transmit this ḥadīth directly from him or any other Imām. He narrates the ḥadīth from a group of Shiʿi ḥadīth transmitters without specifying their names. Hence, this group of transmitters might have been the companions of several Imāms, at least, from the Fourth to the Seventh Imāms, namely, Zayn al-ʿĀbidīn ʿAlī b. al-Ḥusayn, Muḥammad b. ʿAlī al-Bāqir, Jaʿfar b. Muḥammad al-Ṣādiq, Mūsā b. Jaʿfar al-Kāẓim. At first glance, it appears that al-Ṭūsī’s attributions to “the Imāms” in a plural form is more accurate. Nevertheless, one might argue that because ʿAbdallāh b. Bukayr was a companion of the Sixth Imām, it is plausible that he narrated either from those who were also the companions of this Imām or from those who were not very far from his generation; that is, the companions of the Fifth Imām, Muḥammad b. ʿAlī al-Bāqir. However, it is less plausible that he met the companions of the Fourth and Third Imāms, Zayn al-ʿĀbidīn ʿAlī b. al-Ḥusayn and Ḥusayn b. ʿAlī. It is also not plausible that he heard the ḥadīth from later imāms because he was a follower of Faṭaḥī Madhhab, a Shiʿi group that does not recognise the Imāms after the Sixth Imām. Thus, al-Kulaynī’s statement may be more precise, and the ḥadīth should be attributed to either the Fifth or Sixth Imām. However, as noted, all three chains are broken (mursal), that is, the chains of the ḥadīth are missing one or more narrators before the ḥadīth can be attributed to an Imām. This may be why Imāmī jurists have barely addressed this marker as a method to assess the sex of a mamsūḥ. Instead, they often hold that “drawing lots” (qurʿa) is a way to determine the inheritance of such a person, basing their position on those ḥadīths that refer to drawing lots as a marker to determine the inheritance share of mamsūḥs. Although al-Ṭūsī finds it more cautious to adopt a position that prefers the ḥadīths addressing the use of drawing lots to determine the inheritance of mamsūḥ, he argues that there is also no contradiction between these ḥadīths and the above-mentioned one. He explains that drawing lots, as suggested by these ḥadīths, can be applied when there are no other markers to determine a mamsūḥ’s sex (al-Ṭūsī, al-Istibṣār, 4: 187).
Such ḥadīths can be found in Muḥammad b. ʿAlī b. Bābawayh al-Ṣadūq, Man lā yaḥḍuruhu l-faqīh, ed. ʿAlī Akbar Ghaffārī, 4 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1404), 4: 326–28/Ḥ: 5701, 5702, 5704; al-Ṭūsī, Tahdhīb, 9: 353–55, Ḥ: 1267, 1268, 1269, 1270, 1271; al-Qāḍī al-Nuʿmān, Daʿāʾim al-islām (Cairo: Dār al-Maʿārif, 1383/1963), 2: 387–89, Ḥ: 1377, 1378, 1379, 1380. Al-Kulaynī collected only those ḥadīths that address urination as a marker and not those referring to the number of ribs (see al-Kulaynī, al-Kāfī, 7: 156–57, Ḥ: 1 to 5). He recorded the following ḥadīth: when urine exits from both orifices simultaneously, one should assess a khunthā’s condition based on the orifice from which the urine runs out with abundant quantity, and if urine exits from both abundantly, then the ḥadīth suggests the one from which urine exits farther (fa-min abʿadihimā) (al-Kulaynī, al-Kāfī, 7: 157, Ḥ: 5). According to the jurists, abʿad signifies either “farther in time” or “farther in place”. The former implies that one should consider the orifice from which urine ends or lasts longer; the latter implies the orifice from which the urine exits with more pressure and, thus, goes a greater distance (al-Kāfī, 7: 157). This ḥadīth is not found in other early Shiʿi compilations or in Daʿāʾim al-islām of al-Qāḍī al-Nuʿmān.
Several jurists added the following sub-criterion to the aforementioned list: if a khunthā’s urination starts and ends from both orifices simultaneously, then one should examine the orifice from which a larger quantity of urine exits. When a khunthā’s urination starts and ends from both simultaneously and with the same quantity, this case becomes a matter of dispute. For this position, see, for example, Muḥammad b. Muḥammad al-Mufīd, al-Iʿlām bi-mā ittafaqat ʿalayhi l-imāmiyya min al-aḥkām, ed. Muḥammad al-Ḥassūn, (Qum: al-Muʾtamar al-ʿĀlamī li-Alfiyyat al-Shaykh al-Mufīd, 1413), 62; Abū l-Qāsim ʿAlī b. al-Ḥusayn al-Sharīf al-Murtaḍā, Rasāʾil (Qum: Dār al-Qurʾān al-Karīm, 1405), 263; idem, al-Intiṣār fī infirādāt al-imāmiyya (Qum: Muʾassasat al-Nashr al-Islāmī, 1415), 594. There is no Shiʿi ḥadīth that explicitly addresses the quantity of urine as a sub-marker, except for a ḥadīth collected by al-Kulaynī (al-Kāfī, 7: 157, Ḥ: 5), discussed in the previous footnote: this ḥadīth states that when urine exits from both orifices simultaneously, one should determine a khunthā’s condition based on the orifice from which the urine runs out with abundant quantity, and if urine exits from both abundantly, then the one from which urine exits farther (fa-min abʿadihimā). The orifice from which urine exits farther, whether in time or place, implies that there would be more quantity of urine from that orifice. Concerning this sub-criterion, there is also a dispute among classical Sunni legal experts about whether the quantity of urine should be considered as a valid marker. For example, al-Qudūrī (d. 428/1036–7) indicates that reliance on the quantity of urine emerging from each orifice is not a valid method of assessment according to Abū Ḥanīfa (d. 150/767, although his most prominent pupils, al-Qāḍī Abū Yūsuf (d. 182/798–9) and Muḥammad b. al-Ḥasan al-Shaybānī (d. 189/804–5), hold that the quantity of urine is a reliable sub-marker (al-Qudūrī, Mukhtaṣar, 137).
The translations of the qurʾānic verses are by Nasr et al., The Study Quran: A New Translation and Commentary (San Francisco: HarperOne, 2015).
The Ḥanafī jurist al-Sarakhsī (d. 483/1090) briefly addresses a similar theological comment and concludes that, according to Q. 4: 1; Q. 42: 49; and Q. 53: 45, humans are either male or female and thus there is not a third type/category (qism) of humans. If there were a third category of humankind, like intersex, God would have informed humans about this group out of His grace (imtinān) (al-Sarakhsī, al-Mabsūṭ, 30: 91). However, his comment, unlike Ibn Idrīs’s remark in the Shiʿi context, has not led to significant discussions among Sunni uṣūlīs. In fact, his successors did not pursue or even comment on this controversy (see, for example, Abū Ḥāmid Muḥammad b. Muḥammad al-Ghazālī [d. 505/1111], al-Wasīṭ fī l-madhhab, 4: 372; Burhān al-Dīn ʿAlī al-Marghīnānī [d. 593/1196–7], al-Hidāya fī sharḥ Bidāyat al-mubtadī, ed. Ṭallāl Yūsuf, vols. 4 [Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1415/1995], 4: 546–48; Ibn Qudāma al-Maqdisī [d. 620/1223], al-Mughnī, 6: 335–40; al-Nawawī [d. 676/1277], al-Majmūʿ, 2: 46–54; al-ʿAynī [d. 855/1451], al-Bināya, 13: 528–38). It appears that these jurists took the male/female binary at face value because the Qurʾān, in their view, is transparent on this matter and leaves no room for different interpretations, as suggested by al-Nawawī’s assertion that “in our view, a khunthā mushkil is either a man or a woman, and not a third category/type (qism)”. There are a few exceptions, primarily in the Mālikī legal school. For example, the Mālikī jurist Abū Bakr Ibn al-ʿArabī (d. 543/1148–49) critiques those who deny the existence of khunthās on the grounds that God has created only males and females, as referenced in qurʾānic verses such as Q. 42:49. He argues that these individuals fail to comprehend the breadth of God’s omnipotence, which transcends their limited interpretations. Ibn al-ʿArabī presents an argument similar to, yet more detailed than that of al-Shahīd al-Awwal, which will be discussed later in this article. He asserts that the apparent meaning of Q. 42:49 does not exclude the existence of khunthās. The first segment of the verse declares that all things in the heavens and on earth belong to God, and He creates whatever He wills. Ibn al-ʿArabī concludes that this statement represents a universal principle grounded in God’s boundless power. He adds that the reference to the creation of males and females in the second part of verse addresses the majority of humanity but not all humans. However, the first part of verse, which addresses humans in general, includes khunthas. Ibn al-ʿArabī contends that the very existence of khunthās supports this interpretation and refutes the position of those who deny their creation (Ibn al-ʿArabī, Aḥkām al-Qurʾān, 4: 99, 351). Also, the Mālikī jurist Muḥammad b. Sulaymān al-Saṭṭī (d. 750/1349–50) alludes to al-Sarakhsī’s argument, without mentioning al-Sarakhsī by name, in his commentary, Mukhtaṣar al-Ḥawfī fī l-farāʾiḍ (Muḥammad b. Sulaymān al-Saṭṭī, Sharḥ Mukhtaṣar al-Ḥawfī, ed. Yaḥyā Bū ʿArūrū [Beirut: Dār Ibn Ḥazm, 1430H/2009], 965). In addition, the Mālikī jurist al-Ḥaṭṭāb al-Ruʿaynī (d. 954/1547) devotes a brief section to the question of whether khunthā muskils are included in one of the two categories of male and female or should be considered as a third creation (khalq thālith) of humanity, different from male and female. He also alludes to the argument that al-Sarakhsī presented against khunthā muskil as a third category of humankind. Although al-Ruʿaynī tends to agree with this position, and the consensus asserted by Ibn Ḥazm (d. 456/1064) and other leading Sunni jurists on khunthā muskil as being either male or female, he reports that the Mālikī scholar al-ʿUqbānī al-Tilmisānī (d. 811/1408–9), a distinguished pupil of al-Saṭṭī, in his commentary on Mukhtaṣar al-Ḥawfī fī l-farāʾiḍ, states that at least one of the above-mentioned verses—Q. 53:45—cannot be used to argue for the binary position: this is because, as al-ʿUqbānī notes, this verse does not concern the categorisation of humans, but rather rejects those who believe that God has children and dispute whether He has male or female children. Q. 53:45 refutes that assertion by acknowledging that God is the creator of the two categories of humankind and He is not their parent. Since no one claims that God has khunthā children, al-ʿUqbānī continues, there is nothing in this verse on the category of khunthā (Shams al-Dīn Muḥammad al-Ḥaṭṭāb al-Ruʿaynī, Mawāhib al-jalīl fī sharḥ Mukhtaṣar al-Khalīl, 6 vols. [Beirut: Dār al-Fikr, 1412/1992], 6: 124–25). In accordance with al-Ruʿaynī’s report, al-ʿUqbānī refers to the following position of some jurists: khunthā mushkils do not inherit. In his view, this means that khunthā mushkils, according to those jurists, are a third category. If they were male or female, they would not have been denied their right to inheritance (al-Ḥaṭṭāb al-Ruʿaynī, Mawāhib al-jalīl, 6: 125). Subsequently, another Sunni jurist, Ibn Nujaym (d. 970/1563), suggested that God may create just male or just female or khunthā. However, he does not elaborate on this matter. In addition, his discussion of khunthā demonstrates that he regards khunthā mushkil as either male or female in reality, even though their true nature might not be known to us (Zayn al-Dīn b. Ibrāhīm Ibn Nujaym, al-Baḥr al-Rāʾiq sharḥ Kanz al-daqāʾiq, 8 vols. [Cairo: Dār al-Kitāb al-Islāmī, n.d.], 8: 538). A thorough examination of this topic within the Sunni legal context is needed. Moreover, a significant portion of the Sunni (often Ḥanafī) legal sources were produced by jurists with close ties to the Ottoman court. A large number of such works are still kept in manuscript form and preserved in several libraries, mainly in Türkiye. The works of jurists such as Shaykh al-Islām Ibn Kamāl Pāshā (d. 940/1534); Ibrāhīm al-Ḥalabī (d. 956/1549), a Ḥanafī jurist who lived and taught in Ottoman Istanbul and had close ties to the royal court; Shaykh al-Islām Abū l-Suʿūd Efendī (d. 982/1574); and Shaykh al-Islām Shaykhī-Zāda, known as Dāmād Efendī, (d. 1078/1667) are yet to be carefully examined. Nonetheless, based on a study of a number of Ibn Kamāl Pāshā’s legal works, such as Rasāʾil and al-Iḍāḥ fī sharḥ al-Iṣlāḥ, I have determined that he dismisses the binary/non-binary question. Although I could not examine Abū l-Suʿūd’s juristic works, such as Tahāfut al-amjād and al-Fatāwā, which are manuscripts, I did investigate his celebrated commentary (tafsīr) of the Qurʾān entitled Irshād al-ʿaql al-salīm ilā mazāyā l-kitāb al-karīm (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1411), with special attention to the aforementioned verses, namely, Q. 4:1; Q. 42:49; Q. 75:39; Q. 92:3. I found that Abū l-Suʿūd was not concerned about the binary/non-binary question and, like many of his predecessors, took the binary position at face value. Although Ibrāhīm al-Ḥalabī does not raise this point (Ibrāhīm b. Muḥammad al-Ḥalabī, Multaqā l-abḥur [Beirut: Dār al-Kutub al-ʿIlmiyya, 1419/1998], 467–72), he advises slave owners to use distinct terminology when manumiting khunthā slaves because, as he notes, if the owners simply state that all their male slaves or all their female slaves are manumitted, this would not cover khunthā slaves (al-Ḥalabī, Multaqā l-abḥur, 471–72). Gesink accurately concludes that this assertion confirms the establishment of khunthās’ nonbinary or medial legal status by the time of al-Ḥalabī (Gesink, 2018, 153 and 158). However, one should not overlook that al-Ḥalabī addresses the legal status of intersex individuals solely to resolve a practical issue—namely, the manumission of khunthā slaves. This has nothing to do with the juristsic discussions dealt with in this article: the true or ontological nature/sex of khunthā individuals. Moreover, as Shaykhī-Zāda explains, in his interpretation of al-Ḥalabī’s point, a khunthā slave would not be freed by a vow addressing “all male slaves” or “all female slaves”, because there remains doubt whether the khunthā is male or female. According to Shaykhī-Zāda, khunthās are essentially either male or female, but due to the ambiguity surrounding a khunthā’s status, the slave owner may withhold manumission until the sex of the khunthā is determined (ʿAbd al-Raḥmān Shaykhī-Zāda, Majmaʿ al-anhur fī sharḥ Multaqa l-abḥur, 2 vols. [Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1980], 2: 732).
See al-Ḥillī (Muḥaqqiq), Sharāʾiʿ al-islām, 4: 38–41; idem, al-Mukhtaṣar al-nāfiʿ fī fiqh al-imāmiyya (Beirut: Dār al-Aḍwāʾ, 1985), 266–67; al-Ḥillī (ʿAllāma), Qawāʿid al-aḥkām, 3: 382–92; idem, Tabṣirat al-mutaʿallimīn (Tehran: Intishārāt-i Faqīh, 1368), 232–34; idem, Irshād al-adhhān ilā aḥkām al-īmān, 2 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1410), 2: 132–33; idem, Taḥrīr al-aḥkām al-sharʿiyya, 5: 73–81; al-Ḥillī (Fakhr al-Muḥaqqiqīn), Iḍāḥ al-fawāʾid, 4: 249–54.
Al-Ḥillī (ʿAllāma), Mukhtalaf al-shīʿa, 9: 100–1.
Al-ʿĀmilī, al-Durūs, 2: 379.
See Jamāl al-Dīn Aḥmad Ibn Fahd al-Ḥillī, al-Muhadhdhab al-Bāriʿ fī sharḥ al-Mukhtaṣar al-nāfiʿ, 5 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1407), 4: 423–24.
See Jamāl al-Dīn Miqdād b. ʿAbd Allāh al-Suyūrī al-Ḥillī (al-Fāḍil al-Miqdād), al-Tanqīḥ al-rāʾiʿ li-Mukhtaṣar al-sharāʾiʿ, 4 vols. (Qum: Maktabat Āyatallāh al-Marʿashī al-Najafī, 1404), 4: 212; al-Jubaʿī al-ʿĀmilī, al-Rawḍa al-bahiyya, 2: 332; al-Narāqī, Mustanad al-shīʿa, 2: 279–80, 6: 106, 19: 228; al-Marāghī, al-ʿAnāwīn al-fiqhiyya, 1: 38.
Ḥāshiyat Farāʾid al-uṣūl contains lectures compiled by Muḥammad Ibrāhīm al-Yazdī, a trusted student of al-Ṭabāṭabāʾī al-Yazdī who predeceased his teacher in 1903. This work is more than a collection of his teacher’s lectures. Although carefully distinguishing his own opinions from those of al-Yazdī, he frequently critiques his mentor’s positions and adds his own opinions to the text. Hence, on topics on which he does not make an objection or express an opinion, one assumes that he concurred with his teacher’s view.
For ḥadīths that prohibit men from wearing gold and silk, see al-Ṭūsī, Tahdhīb al-aḥkām, 2: 227, Ḥ: 894 and 2: 372, Ḥ: 1548; Muḥammad b. ʿAlī b. Bābawayh al-Ṣadūq, al-Khiṣāl, ed. ʿAlī Akbar Ghaffārī, 2 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1417), 2: 588, Ḥ: 12.
For ḥadīths on the prohibition of male and female beautification, see al-Kulaynī, al-Kāfī, 5: 550, Ḥ: 4 and 5: 552, Ḥ: 4 and 8: 71, Ḥ: 27.
Murtaḍā al-Anṣārī, Farāʾid al-uṣūl, 4 vols. (Qum: al-Majmaʿ al-Fikr al-Islāmī, 1419), 1: 175–76.
al-Yazdī, Ḥāshiyat al-Makāsib, fol. 26a (original ms.), 1: 16 (lit), 1: 98 (Ṭayyiba) and Ḥāshiyat al-Farāʾid, 1: 225.
For such ḥadīths, see al-Kulaynī, al-Kāfī, 7: 157–58, Ḥ: 1, 2, 3.
Al-Yazdī, Ḥāshiyat al-Makāsib, fol. 26a (original ms.); 1: 16 (lit); 1: 98 (Ṭayyiba). Using the term mushkil in relation to the mamsūḥ is unusual: I have not found any other Shiʿi scholar who uses the term mamsūḥ mushkil before or after al-Yazdī. In fact, in his commentary on Farāʾid al-uṣūl, al-Yazdī applies the term mushkil exclusively to khunthās (al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 225). Nevertheless, it seems that according to al-Yazdī, as he indicates in his commentary on al-Makāsib, if the sex of a mamsūḥ can be determined, the mamsūḥ should be regarded as mamsūḥ ghayr al-mushkil; otherwise, that person is mamsūḥ mushkil.
Although al-Yazdī, in Ḥāshiyat al-makāsib, states that there is no way to prove that khunthā mushkils or mamsūḥs are or should be included in the binary categories of male and female, he emphasises that he could not find supporting proofs to acknowledge intersex people as a third nature/sex category (al-Yazdī, Ḥāshiyat al-makāsib, fol. 26a (original ms.); 1: 16 (lit); 1: 98 (Ṭayyiba).
Al-Yazdī, Ḥāshiyat al-makāsib, fol. 26a (original ms.); 1: 16 (lit); 1: 98 (Ṭayyiba); and Ḥāshiyat Farāʾid al-uṣūl, 1: 228.
Al-Yazdī, Ḥāshiyat al-makāsib, fol. 26a (original ms.); 1: 16 (lit); 1: 98 (Ṭayyiba); and Ḥāshiyat Farāʾid al-uṣūl, 1: 228.
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 228.
Al-Yazdī, Ḥāshiyat al-makāsib, fol. 26a (original ms.); 1: 16 (lit); 1: 99 (Ṭayyiba).
See al-Kulaynī, al-Kāfī, 7: 157, Ḥ: 3.
Al-Yazdī, Ḥāshiyat al-makāsib, fol. 26a (original ms.); 1: 16 (lit); 1: 98–99 (Ṭayyiba).
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 228.
See the ḥadīth in al-Kulaynī, al-Kāfī, 7: 158, Ḥ: 2.
Al-Ḥusaynī al-Marāghī, al-ʿAnāwīn al-fiqhiyya, 1: 40–41. I could not find a jurist earlier than al-Marāghī who stated this position. Although these jurists often disagree about the legal rulings on a khunthā, they hardly disagree about legal rulings on a mamsūḥ.
Al-Yazdī, Ḥāshiyat al-makāsib, fol. 26a (original ms.); 1: 16 (lit); 1: 99 (Ṭayyiba).
I have not found a Shiʿi or Sunni scholar earlier than al-Yazdī who formulated this proof.
Alipour, Negotiating Homosexuality, 69–71.
In current works of Shiʿi legal hermeneutics, scholars often address three such experiments: tabādur (immediacy: the meaning of a concept that occurs first to the mind without any internal or external signs/evidence); iṭṭirād (coextending: the use of a concept for a specific meaning is consistently extended across different spaces or times, and thus is not limited to one space or the other or one time or the other); and ṣiḥḥat al-salb wa-ʿadam ṣiḥḥat al-salb (the validity of negation and invalidity of negation) or, occasionally, ṣiḥḥat al-ḥaml wa-ʿadam ṣiḥḥat al-ḥaml (the accuracy of attributing and inaccuracy of attributing; see Muḥammad Kāẓim al-Khurāsāni, Kifāyat al-uṣūl (Qum: Muʾassasat Āl al-Bayt li Iḥyāʾ al-Turāth, 1409), 18–20; Muḥammad Riḍā al-Muẓaffar, Uṣūl al-fiqh, 2 vols. (Qum: Maktabat al-Iʿlām al-Islāmī, 1373sh), 1: 31–35). Other scholars have proposed up to twelve methods for distinguishing the literal meaning from the figurative one (see Muḥammad-Taqī al-Rāzī al-Iṣfahānī, Hidāyat al-mustarshidīn, 3 vols. [Qum: Muʾassasat al-Nashr al-Islāmī, 1429], 1: 213–84).
See Muḥammad al-Rawhānī, Muntaqā l-uṣūl, compiled by ʿAbd al-Ṣāḥib al-Ḥakīm, 7 vols. (Qum: Nashr al-Hādī, 1416), 1: 176–77. According to al-Muẓaffar, this experiment should be illustrated as follows: in the constructed proposition, the concept about which we are wondering whether it is the literal meaning of a given term should be the subject, and the term for which we seek the literal meaning should be the predicate (al-Muẓaffar, Uṣūl al-fiqh, 1: 33).
To make better sense of this example, compare it with the following statement: “a khunthā mushkil is not a human”. This statement and the negation of humanness of a khunthā mushkil are indeed inaccurate according to theʿurf (custom).
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 226.
Alipour, Negotiating Homosexuality, 55–86.
Al-Khurāsānī, Kifāyat al-uṣūl, 463–64; Muḥammad Bāqir al-Ṣadr, Buḥūth fī ʿilm al-uṣūl, compiled by Maḥmūd al-Ḥāshimī, 7 vols. (Qum: Markaz al-Ghadīr li-l-Dirāsāt al-Islāmiyya, 1417/1996), 5: 9–11; Mahdī ʿAlīpūr, al-Madkhal ilā tārīkh ʿilm al-uṣūl, trans. (from Persian into Arabic) ʿAlī Ẓāhir (Beirut: Dār al-Walāʾ, 1431/2010), 385.
Al-Anṣārī, Farāʾid al-uṣūl, 2: 10–11.
Ibid., 2: 14.
Ibid., 2: 17.
Al-Anṣārī, Farāʾid al-uṣūl, 2: 19–20; al-Khurāsānī, Kifāyat al-uṣūl, 338.
Al-Anṣārī, Farāʾid al-uṣūl, 2: 277–80; al-Khurāsānī, Kifāyat al-uṣūl, 358–60.
Al-Anṣārī, Farāʾid al-uṣūl, 2: 257–73.
Ibid., 2: 298; al-Khurāsānī, Kifāyat al-uṣūl, 355–57.
Al-Anṣārī, Farāʾid al-uṣūl, 3: 9–10; al-Khurāsānī, Kifāyat al-uṣūl, 384–85.
Al-Anṣārī, Farāʾid al-uṣūl, 2: 18.
Ibid., 2: 13–14.
On this matter, see al-Rawḥānī, Muntaqā l-uṣūl, 3: 315–35; and al-Muzaffar, Uṣūl al-fiqh, 1: 146–47.
Āghā Ḍiyā al-Dīn al-ʿIrāqī, Nihāyat al-afkār, compiled by Muḥammad Taqī al-Burūjirdī, 3 vols. (Qum: Muʾassasat al-Nashr al-Islāmī, 1405/1363sh), 2: 408–10.
Some scholars note that the aforementioned typologies are not accurate. The correct taxonomy, in their view, would be to divide doubt concerning a legal ruling into shubha ḥukmiyya versus shubha miṣdāqiyya, because the former also includes doubts pertaining to the concept (mafhūm) of a legal ruling, while the latter concerns the actual cases of a legal ruling that is doubtful due to external ambiguities. According to these scholars, jurists who use mawḍūʿiyya in this context, in fact, mean miṣdāqiyya. Indeed, some jurists use the two pairs mawḍūʿiyya —miṣdāqiyya and ḥukmiyya—mafhūmiyya interchangeably. Otherwise, as these scholars remark, the subject (mawḍūʿ) of a legal ruling varies. As noted above, in some cases, the meanings of these subjects must be carefully articulated by the lawgivers, and in other cases, their meanings are determined by ordinary people or common users. Thus, the subject itself has nothing to do with the external doubt (see Abū l-Qāsim ʿAlīdūst, Fiqh wa-ʿurf [Tehran: Intishārāt-i Pazhūhishghāh-i Farhangh wa-Andīsha-yi Islāmī, 1397sh], 356–60).
According to al-Yazdī, it is plausible to hold that general proofs evoke (inṣirāf) only the two categories of male and female. Hence, legal rulings move away from the category of intersex entirely. Interestingly, he expresses his strong inclination to endorse this position, although he ultimately rejects it because, as he notes, it is widely accepted among Muslim scholars that intersex people, as humans, are legally responsible (mukallaf) before God. Therefore, they must observe their religious duties (al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 226).
Recall the previous point concerning the similarity and interchangeable use of the following typologies— shubha ḥukmiyya versus shubha mawḍūʿiyya and shubha mafhūmiyya versus shubha miṣdāqiyya. In this case, al-Yazdi uses these typologies interchangeably. When the critic frames the case as shubha mafhūmiyya versus shubha miṣdāqiyya, al-Yazdi responds by referring to the same case as shubha ḥukmiyya versus shubha mawḍūʿiyya.
Ibrāhīm al-Yazdī adds a note to this analysis of his teacher. According to him, although al-Yazdī presents the situation in which one does not know whether khunthā mushkil and mamsūḥ are a third sex/nature as a case of shubha ḥukmiyya, his analysis entails that even if one knows that they are not a third sex/nature, the doubtful condition would still be a case of shubha ḥukmiyya. This is because the meaning of ‘male’ or ‘female’, addressed by the specific proof, is doubtful between a person who is conditioned to have only one set of genitalia and no other (bi-sharṭ lā: negatively conditioned), and a person who is expected to have one set of genitalia but is not conditioned to whether or not the person can possess an additional set (lā bi-sharṭ: non-conditioned). As a result, the definitive cases of males or females are those who have one set of genitalia. Thus, they are the only individuals who can be definitively excluded from the general legal ruling based on this specific proof, while other humans, including khunthā mushkils and mamsūḥs, remain subject to the general proof and general legal ruling. Ibrāhīm al-Yazdī then asserts that he shared this comment with his teacher, al-Yazdī, and that he affirmed it. However, Ibrāhīm al-Yazdī himself ultimately holds that there might be a solution to identify the doubtful condition in this latter situation—namely, when one knows that these people are not a third category—as a case of shubha mawḍūʿiyya, not shubha ḥukmiyya. He portrays the situation as follows. On the one hand, the general proof establishes the legal ruling equally for males and females. The specific proof, however, excludes one of the males or females from the general legal ruling. On the other hand, khunthā mushkils and mamsūḥs are included in either the male or female category, because there is no other category for them. However, we do not know whether they belong to the male or female category (Ibrāhīm al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 227).
“Tell the believing men to lower their eyes and guard their private parts. That is purer for them. Surely God is Aware of whatsoever they do. And tell the believing women to lower their eyes and to guard their private parts, and to not display their adornment except that which is visible thereof” (Q. 24: 30–31/translation by Nasr et al).
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 232.
Al-Anṣārī, Makāsib al-muḥarrama, 1: 175 and Farāʾid al-uṣūl, 1: 100. However, as al-Anṣārī notes, the proof for this legal ruling is the following: it is prohibited for males and females to resemble each other. One might argue that the apparent meaning of the concept of “resemblance” (tashabbuh) implies that it may occur only if the person who supposedly resembles the opposite sex had prior knowledge of the act of resemblance and thus intentionally performed it (wa yushkal, bināʾan ʿalā kawn madrak al-ḥukm ḥurmat al-tashabbuh, bi-anna l-ẓāhir min “al-tashabbuh” ṣūrat ʿilm al-mutashabbih). If so, then this law should not be enforced on khunthā mushkils or mamsūḥs because they do not have any prior knowledge or intention to perform the act of resemblance (al-Anṣārī, Makāsib al-muḥarrama, 1: 175–76).
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 232.
Al-Anṣārī, Farāʾid al-uṣūl, 1: 100.
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 232.
On rukhṣa and ʿazīma, see EI3 s.v. ʿAzīma and Rukhṣa (Marion H. Katz), Accessed November 2023. For a primary source, see Zayn al-Dīn b. ʿAlī al-Jubaʿī al-ʿĀmilī, Tamhīd al-qawāʿid (Mashhad: Maktab al-Iʿlām al-Islāmī, 1416), 45–47.
Al-Anṣārī, Farāʾid al-uṣūl, 1: 100.
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 234.
Note that these exact verses are repeated elsewhere in the Qurʾān (Q. 70:29–31).
Al-Anṣārī, Farāʾid al-uṣūl, 1: 101–2.
Ibid., 2: 252.
Al-Yazdī, Ḥāshiyat Farāʾid al-uṣūl, 1: 239.
The priority of the initial exemption (barāʾa aṣliyya) refers to a doctrine in both Shiʿi and Sunni legal theory. It implies that before the advent of Islamic revelation, there was no legal responsibility for matters later regulated by Islam. Once Islamic revelation is received, individuals are responsible for what is prescribed by Islamic scriptural sources. However, in cases of doubt due to the lack of scriptural evidence, individuals are exempt from legal responsibility based on the priority of the initial exemption (Abū Ḥāmid Muḥammad b. Muḥammad al-Ghazālī, al-Mustaṣfā minʿilm al-uṣūl, ed. Muḥammad ʿAbd al-Shāfī [Beirut: Dār al-Kutub al-ʿIlmiyya, 1413H/1993], 159; Najm al-Dīn Jaʿfar b. Ḥasan al-Ḥillī (Muḥaqqiq), Maʿārij al-uṣūl, ed. Muḥammad Ḥusayn al-Raḍawī [Qum, Iran: Muʾassasat Āl al-Bayt li-Iḥyāʾ al-Turāth, 1403H], 221).
Ibid., 1: 240.
Muḥammad Ḥasan al-Ṭūsī, al-Mabsūṭ fī fiqh al-imāmiyya, 8 vols. (Tehran: al-Maktabat al-Murtaḍawiyya li-Iḥyāʾ al-Āthār al-Jaʾfariyya, 1387), 4: 117; al-Ḥillī (Muḥaqqiq), Sharāʾiʿ al-islām, 4: 41; al-Ḥillī (ʿAllāma), Qawāʿid al-aḥkām, 3: 392 (ʿAllāma regards this view as less accurate).
See al-Ṣadūq, Man lā yaḥḍurhu l-faqīh, 4: 327–28, Ḥ: 5704; al-Qāḍī al-Nuʿmān, Daʿāʾim al-islām, 2: 387–88, Ḥ: 1377.
