Does Islam Permit Sex-Reassignment Surgery?

Laws concerning gender ambiguity are not new to Islamic law literature. For example, there are several laws regarding khunthā (intersexed and hermaphrodites), mamsūh (one without any male or female genitals) and khasī (eunuchs). However, a lesser-known category in Islamic law is the case of transgenderism. A trans person is someone who feels that their gender identity does not correspond to the one they were born with.^[1] Thus, there is an inner conflict between what one feels their gender actually is and the gender they were assigned or born with.

The larger question concerning transgenderism is regarding the biological definition of gender identity. The scientists and medical experts are yet to find a concrete answer to this question. Additionally, recent studies have shown that trans identity is not specifically linked to sexual orientation; it is about gender identity and how someone defines themselves on the male to female spectrum.^[2] Modern society has provided sufficient freedom for people to express and define their identities as they feel from within themselves. Even though there are no specific Qur’anic verses nor any prophetic reports that directly addresses transgenderism, one can still glean the view of shariah from general legal principles outlined in the Qur’an and hadith literature.

Juristic Edicts On Sex Reassignment Surgery

There are three main opinions issued in this regard: absolute prohibition, absolute permission, and conditional permission.

1. As for absolute prohibition of any kind of sex reassignment surgery, jurists based their edicts(pl. fatāwa sing. fatwa) on the apparent indication of the Qur’an. The proponents of this position assume that such a surgical operation leads to altering the creation of God which is categorically condemned by God in the Qur’an.^[3] They suggest people suffering from such ‘disorders’ should be patient and supress their ‘unwarranted’ feelings and consider their situation as a trial from God for which they will be rewarded if they genuinely could not reconcile with their gender identity.^[4]
2. The absolute permission for any kind of sex reassignment surgery, implies that anyone, irrespective of them being transgenders or not, can indulge in this surgical operation.
3. Regarding the conditional prohibition, the proponents of this position argue that performing sex reassignment surgery is only permissible for those who are diagnosed by qualified medical and mental health practitioners.

Examination Of The Juristic Edicts

The opinions of absolute prohibition and absolute permission are not substantiated with concrete evidence with conditional permission providing a middle ground.

1. The problem with advocating absolute prohibition of any type of sex reassignment surgery is that in the lieu of scores of medical and psychological studies, this position does not seem tenable.^[5] The argument concerning the alteration of God’s creation is countered by the idea that the case of a transgender is not the case of altering God’s creation. Contrary to that it could be argued that God has created them with these specifications and characteristics and hence it is not alteration per see.
2. The problem with advocating absolute permission of any type of sex reassignment surgery is that it is a slippery-slope argument. This is because it would lead to a host of other challenges pertaining to personal, familial, and societal disorders. It should be noted that sex reassignment surgery is an exception to the rule and hence it could only be used when/where there is an absolute necessity.^[6] Necessity offers the opportunity to explore alternative options may they be among impermissible otherwise – Necessity only offers a window to the extent it is fulfilled.
3. The third argument of conditional prohibition is thus the strongest. Some contemporary scholars have issued fatwas with similar conditions:

For instance, the late Grand Mufti of Egypt, Tantawi, issued the fatwa:

It is permissible to perform the operation in order to reveal what was hidden of male or female organs. Indeed, it is obligatory to do so on the grounds that it must be considered a treatment when a trustworthy doctor advises it. It is, however, not permissible to do it at the mere wish to change sex from woman to man, or vice versa.” ^[7]

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The late Grand Marja of Iran, Khomeini, issued the following fatwa:

Sex-change operation is not prohibited in Shariah law if reliable doctors recommend it.” ^[8]

Moreover, there are two general principles used in Islamic legal theory (usūl al-fiqh), which can be used to support the conditional permission of sex reassignment surgery argument. The first is called nafy al-haraj (eliminating any kind of trouble, difficulty, and hardship) and the second is absolute autonomy and control over one’s wealth and property.

1. The principle of nafy al-haraj states that one should not be tasked with any kind of unbearable trouble or difficulty. This extends to both unbearable mental and physical hardship. Various studies have shown that a transgender individual suffers from various kinds of physical, societal, and psychological stress because of unconventional characteristics they may display in their daily lives. These studies have also shown that the rates of suicide and/or suicidal thoughts are significantly higher than other individuals.^[9] The principle of eliminating any hardship is invoked in the case of transgenders in order to allow them to perform sex reassignment surgery. Needless to state that one must ascertain (through medical and other related tests) that the individual is experiencing the imbalance between their real identity and the societal-imposed identity.
2. The second principle of absolute autonomy states that individuals have full authority over their wealth and themselves. This principle suggest that the owner of a property has the final say as to what he/she wants to do with it. No one other than the owner can make a decision for it. The only exception is that the property should not be used for illegal and prohibited purposes. This principle could also be applied to one’s body. Given this extension in application, sex reassignment surgery for transgender – out of necessity – should be permissible since it is not considered as a prohibited (haram) act, rather something which is detrimental to their overall wellbeing.

Religious Observances and Sex Reassignment Surgery

Based on the permissibility of the sex reassignment surgery, an individual who has gone through the procedure (out of necessity) should be treated and identified by their “new” identity. This is because of religious observances, i.e., performing one’s religious duties, are designed based on the outer appearance and features of individuals. Therefore, the Shariah would consider such an individual in their new state – since their inner gender and outer appearance are now identical.

References

1. https://www.nhs.uk/livewell/transhealth/documents/livingmylife.pdf It should be noted that there are several other categories related to gender ambiguity which are not examined here. For further details see M. Alipour, “Transgender Identity, The Sex-Reassignment Surgery Fatwās and Islāmic Theology of A Third Gender”, Religion and Gender 7.2 (2017), pp. 164-179; M. Alipour, “Islamic shari’a law, neotraditionalist Muslim scholars and transgender sex-reassignment surgery: A case study of Ayatollah Khomeini’s and Sheikh al-Tantawi’s fatwas,” International Journal of Transgenderism 18:1 (2017), pp. 91-103; Aisya Aymanee M. Zaharin & Maria Pallotta-Chiarolli, “Countering Islamic conservatism on being transgender: Clarifying Tantawi’s and Khomeini’s fatwas from the progressive Muslim standpoint”, International Journal of Transgender Health 21:3 (2020), pp. 235-241; Farḥān b. Hamsādī and Muṣṭafā b. Muḥammad Jabrī Shams al-Dīn, “Hukm tahwīl al-jins,” International Islamic University Malaysia (2018), pp. 50-58; Jakob Skovgaard-Petersen, “Sex Change in Cairo: Gender and Islamic Law,” The Journal of the International Institute 2.3 (1995); Dāwūd Nawjawān, “Mabānī-ye fiqhī wa huqūqiye taghyīr-i jinsiyat,” Faslnāme-ye huqūqī-ye Pizishkī 9 (1388 Sh/2009), pp. 149-189.
2. https://www.nhs.uk/livewell/transhealth/documents/livingmylife.pdf
3. Quran 4:119.
4. Jaʿfar Subhānī, “Taghyīr jinsiyyat az dīdgāh-e fiqh-e Islāmī” Fiqh-e Ahl-e Bayt 69 (1391 SH/2013), p. 13.
5. https://www.nhs.uk/livewell/transhealth/documents/livingmylife.pdf
6. In Islamic legal theory, the original Arabic for this principle is: al-darurāt tubīhu al-magūrāt al-ḍarurātu tuqaddaru bi-qadariha lit. necessities (i.e., acting out of necessity) makes things permissible in emergency situations/cases.
7. This fatwa does not specifically address the issue of transgender. Some scholars have implied it encompasses all kinds of gender ambiguity.
8. M. Alipour, “Transgender Identity, The Sex-Reassignment Surgery Fatwās and Islāmic Theology of A Third Gender”, Religion and Gender 7.2 (2017), p. 170. Also see, Imam Khomeini, Tahrīr al-wasīla, (Najaf: Maṭbaʿa al-adab, 1970) v. 2, p. 626.
9. See https://williamsinstitute.law.ucla.edu/publications/suicidality-transgender-adults/