Although most traditional Muslim scholars condemn same-sex desires and acts, revisionist Muslim scholars have offered a more tolerant approach on this issue over the last two decades. Building on an essentialist approach to same-sex desires and acts, these scholars have argued that Islam accepts difference and diversity, including sexual diversity, as part of God's creation. Homosexuality, which in their view is an innate disposition to the same sex, is an alternative sexuality and, thus, accepted by the Qur'an and Islam. This article argues that an essentialist approach is not suitable to defend all manifestations of same-sex desires and acts, not only because it is narrow (as it excludes both bisexual Muslims and homosexual Muslims who believe that their sexual orientation is socially constructed), but also because it cannot even argue the case for the view of homosexuality as inborn. This article proposes to open up the debate beyond essentialism and constructivism, which both have their limitations, to accommodate a more inclusive and tolerant Islamic approach to same-sex desires and acts.
Although in the late 1980s, transgender sex-reassignment surgery was legalized (made halāl) in sharīʿa and/or in state law by the Fatwās of Āyatullāh Khomeini in Iran and Shaykh al-Ṭanṭāwī in Egypt, the issue of whether Islamic theology accepts transgender people as third gender remains underdeveloped. The traditional Islamic line on gender divisions has been criticised for being established on the basis of the binary logic of male and female gender which leaves no capacity to accept a third gender in traditional Islāmic theology. Therefore, the fatwās of both Khomeini and al-Ṭanṭāwī were issued on the basis of the binary logic of male and female gender. However, this article argues that although al-Ṭanṭāwī’s fatwā was vague and clearly built on a gender binary logic, Khomeini’s fatwā was issued on other grounds that may allow for a discussion on transgender Muslims as third gender. Moreover, the article argues that there is a discursive space within Muslim juridical texts which one may justifiably use to underpin an interpretation of a third gender in Islāmic legal and theological debates.
Muslim jurists have issued several fatwas (Islamic legal opinions) permitting gender-confirming surgery (GCS) for various groups of intersex and/or transgender people. However, these fatwas have been critiqued for conceiving of intersex and transgender individuals as diseased people who need treatment for an illness. By closely examining the legal-hermeneutical arguments behind four widely cited fatwas on GCS—the fatwas of the Islamic Fiqh Council of the Muslim World League, the National Council of Islamic Religious Affairs, Shaykh Ṭanṭāwī, and Ayatollah Khomeini—this article argues that although the objection to the medicalization of the recipients of GCS in such fatwas is mostly correct, it is not always accurate, as it is not the case in Khomeini’s fatwa. The present study, based on the legal-hermeneutical reasoning established in modern Shiʿi juristic scholarship, proposes a discursive space within Khomeini’s fatwa that suggests that intersex and transgender individuals are not people who suffer from physical or mental illness, although they should be permitted to undergo GCS if they wish.
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