Department of Shariah & Law

Reference

LAHORE, May 22: Describing the same-sex marriage as un-Islamic and unlawful, the Lahore High
Court on Tuesday sent to jail the Faisalabad couple whose marriage turned out to be the first case
of its kind in the country when a medical examination revealed that the husband too was a
woman.

The court also issued show-cause notice to the couple seeking explanation as to why it should not
be proceeded against on charges of committing unnatural offence and lying to court over the
gender issue.

If convicted, the couple will face a minimum of a two-year jail and a maximum of life imprisonment
under section 377 of PPC on charges of committing unnatural offence, a section pertaining to
homosexuality, and seven-year term for lying to court.

The ‘she-husband’ had been sent to the Kot Lakhpat jail, Lahore, and the ‘bride’ to the Faisalabad
district jail. However, there was no specification in the court ruling whether the former would be
detained in a male-only lockup or a female’s prison.

Shumail Raj, 31, and Shazina Tariq, 26, the two cousins who were close to each other as friends,
became focus of attention after the bride’s father Tariq Husain informed the court on May 8 that
the ‘husband’ was a born woman was still so despite having gone through two sex change
operations. A penal of doctors appointed by the court confirmed that Shumail was a woman.

Shumail on Tuesday admitted that ‘he’ was a born woman and was still so despite having gone
through two surgeries for sex reassignment. As the court took up the case, Justice Khwaja
Mohammad Sharif asked ‘him’ to explain whether he was a male or a female. “I am a woman,”
Shumail replied and sought an apology when the judge asked him why he earlier told a lie to court.

Shumail said ‘he’ told a lie on the last hearing because present there were some of his friends who
had no idea about his gender and the sex change operation. The judge did not accept the apology
and instead issued the show-cause notice. On the court query, the bride, too, admitted that she
knew all about Shumail’s physical status.
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Arrested on Sunday on the court directions, Faisalabad police DIG Aslam Tareen produced the
couple in court which was jam-packed owing to the presence of dozens of lawyers, media men and
other people. The court ordered everybody, except the media and the lawyers concerned, to leave
the courtroom.

The judge ruled: “Islam and law of our country do not allow a marriage of such kind. A marriage of
same sex is neither allowed in Islam nor in our country.” He also said there was no need for further
medical examination of Shumail who had admitted that ‘he’ was a woman.

The judge also directed the police to ensure the presence of Dr Abdul Hameed Kardar, who had
performed the two sex reassignment surgeries on the she-husband, asking under what law he had
been doing such business?

When Mr Husain’s lawyer Ms Gulzar Butt informed the court that the police did not arrest the co-
accused of the couple and those who had been providing shelter to them, the court directed the
police to apprehend all of them.

The couple in its petition had submitted that they had married according to Muslim law and of their
own free will. They also submitted that they had been living happily as husband and wife since their
marriage.

Soon after the proceedings concluded, a crowd outside the courtroom made it difficult for the
police to take the couple to a police van. Everybody was trying to have a glimpse of the couple and
to have a few words with either of them.

“Ours is a love marriage. We want to live together. We will appeal if the court decides against us,”
Shumail said briefly in response to a volley of queries the mediamen posed to the couple. Shazina
only said she had proposed Shumail who had not committed any crime, except helping her out.

The woman after her arrest in Lahore on Sunday had told reporters in the Faisalabad police custody
that she had approached Shumail with the proposal just for the sake of her protection because one
of her uncle’s wanted to force her into marriage to settle his gambling debts.

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The court will resume hearing on May 25 when the couple and its counsel come up with the replies
to the show-cause notice.

FAISALABAD, May 31: Jhang Bazaar police on Wednesday night registered a case against doctors
without naming anyone who had operated upon Shumail Raj in same-sex marriage episode.

Police sources said Jhang Bazaar SHO Mian Khalid registered the case on the orders of the Lahore
High Court, but he did not mention the name of any doctor as a result DIG (operations) Mohammad
Aslam Tareen had suspended him from service.

Shumail Raj and Shehzina were arrested by the Faisalabad police from Lahore on May 20 after the
bride’s family complained about the gender of her husband. The court sentenced the ‘couple’ for
three years in prison the other day.

However, investigation head of the same police station, Khawar Saleem, nominated Dr Mohammad
Asif of Ghulam Mohammadabad in his preliminary investigation.

He said Dr Asif had been nominated according to the court’s direction and if any other was found
guilty would also be included.

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Lesbian, gay, bisexual, and transgender (LGBT) rights in Pakistan are considered taboo. Even in large
cities, gays and lesbians have to be highly discreet about their sexual orientation. Pakistani law prescribes
criminal penalties for same-sex sexual acts. The Pakistan Penal Code of 1860, originally developed under
colonialism, punishes sodomy with a possible prison sentence and has other provisions that impact the
human rights of LGBT Pakistanis, under the guise of protecting public morality and order. Despite being a
legal offence, acts of homosexuality are not uniformly prosecuted in the country.

Discrimination and disapproval of the LGBT community, along with the associated social stigma, mostly stem
from religious beliefs and make it difficult for LGBT people to have steady relationships. Nevertheless, the
LGBT community is still able to socialize, organize, date, and even live together as couples, if done in secret.
Sexual encounters between same-sex partners are easily accessible, especially in big cities such
as Karachi and Lahore, and for gay and bisexual men in particular. As a result of globalization,
increasing liberalization trends and advancing social tolerance, private gay parties in Pakistan have been
thriving for a number of years. In addition, there is a growing number of individuals, especially those born to
parents who have been educated in the developed world, who are usually university graduates and have
some sort of understanding about evolution and sexuality, who are coming out to their friends and
introducing them to their same-sex partner.

In 2018, Parliament passed the Transgender Persons (Protection of Rights) Act which established broad
protections for transgender people. Earlier, in a historic 2009 ruling, the Supreme Court of Pakistan ruled in
favor of civil rights for transgender citizens, and further court rulings upheld and increased these rights.

Pakistan does not have civil rights laws to prohibit discrimination or harassment on the basis of sexual
orientation. Neither same-sex marriages nor civil unions are permitted under current law and are scarcely
ever brought up in the political discourse.

Legality of same-sex sexual activity

Pakistani law is a mixture of both Anglo-Saxon colonial law as well as Islamic law. Under the colonial aspects
of the law, the section of the Penal Code criminalizing consensual same-sex relations dates back to 6 October
1860 under the colonial rule of the British Raj. Written by Lord Macaulay, the Indian Penal Code 1860, as it
was named at the time, made same-sex sexual acts illegal under the Anglo-Saxon law of "Unnatural
Offences", known as carnal knowledge. After Pakistan received independence in 1947, the Parliament
decided to continue using the same Penal Code, merely changing the title to Pakistan Penal Code (Act XLV of
1860). Within the Penal Code, Article 377 ("Unnatural Offences") states: "Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal, shall be punished with

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imprisonment for a term which shall not be less than two years nor more than ten years, and shall also be
liable to fine".

As part of the Islamizsation of Pakistan, the Hudood Ordinances were enacted in 1977, stipulating severe
punishments for adultery, fornication, consuming alcohol and same-sex sexual acts. The amendments
included primitive forms of penalization like whipping of up to 100 lashes and death by stoning. An LGBT
Pakistani may face either secular or Islamic, or in some cases both, punishments. Although, all of the known
recorded cases of these laws being used against LGBT Pakistanis suggest that the more common punishment
involves harassment and sporadic blackmail by the police, then the imposition of fines and jail sentences.

Pakistan Penal Code 1860

 Article 141 – An assembly of five or more persons is designated an "unlawful assembly" if the common
object of the persons composing that assembly is to commit any mischief or criminal trespass, or other
offense.
 Article 153 – Whoever by words, either spoken or written, or by signs, or by visible representations, or
otherwise, induce or attempts to induce any student, or any class of students, or any institution
interested in or connected with students, to take part in any political activity which disturbs or
undermines, or is likely disturb or undermine, the public order shall be punished with imprisonment
which may extend to two years or – with fine or with both.
 Article 268 – A person is guilty of a public nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general who
dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.
 Article 269 – Whoever unlawfully or negligently does any act which is, and which he knows or has reason
to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine, or with
both.
 Article 270 – Whoever malignantly does any act which is, and which he knows or has reason to believe to
be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both.
 Article 290 – Whoever commits a public nuisance in any case not otherwise punishable by this Code,
shall be punished with fine which may extend to six hundred rupees.

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 Article 292 – Prohibits the sale, distribution, exhibition, ownership or importation of any, "obscene"
books, pamphlets, or other literature or images.
 Article 294 – Prohibits any "obscene" public acts, songs, music or poems.
 Article 371A – Whoever sells, lets to hire, or otherwise disposes of any person with intent that such a
person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with
any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at
any time be employed or used for any such purpose, shall be punished with imprisonment which may
extend to twenty-five years, and shall also be liable to fine.
 Article 371B – When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any
person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary
is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of
prostitution. For the purposes of this section and section 371B, "illicit intercourse" means sexual
intercourse between persons not united by marriage.
 Article 377 – Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which shall not be less than two years nor more than ten years, and shall also be
liable to fine. Penetration is sufficient to constitute the carnal intercourse necessary to the offense
described in this section.
 Article 496 – Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being
married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall be liable to fine.

Constitutional rights

The Pakistan Constitution does not explicitly make mention of sexual orientation or gender identity. It does
contain certain provisions that may impact the constitutional rights of LGBT Pakistani citizens.

 Part II 37. The government pledges to promote Islamic values among its Muslim citizens, to protect
marriage and the family and to oppose obscenity.
 Part IX 227. Islam is the official state religion, and all laws, rules, regulations and other such legislation
must be compatible with Islam, as defined by a government appointed Islamic council.

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Discrimination protections

No civil rights legislation exists to prohibit public or private sector discrimination on the basis of sexual
orientation or gender identity.

The Green Party of Pakistan has expressed some support for LGBT rights, but most political parties either
ignore the issue of LGBT rights or oppose LGBT rights on religious grounds.

Sociologists Stephen O. Murray and Badruddin Khan have written that the penal laws themselves are rarely
enforced directly, but are used by the police and other private citizens as a form of blackmail.

In March 2012, at the Human Rights Council, Hina Jilani, who was then also Chair of the Human Rights
Commission of Pakistan and former Special Representative of the Secretary-General said, "it was very
important to emphasize that a serious obstacle was the persistent denial of protection for people from
violence on the basis of sexual orientation and gender identity. That denial and rejection were not prudent
for any Government that claimed the commitment to the promotion and protection of human rights. It was
not convincing when culture and religion were used as a shield and an excuse for failure to protect. There
was no notion of responsibility that allowed duty bearers to selectively hold out on protection."

Gender identity and expression

A group of khawaja saras and transgender people protest in Islamabad.

In most South Asian nations, there is a concept of third gender where members are referred to by society as
neither man nor a woman. Pakistan is no different and has a vibrant culture of hijras (‫)ہِجڑا‬. While the term is
commonly used in South Asia, it is considered derogatory in Urdu and the term khawaja sara (‫ )ہیجڑا‬is used
instead. They are sometimes referred to as transgender, intersex or eunuchs in English language
publications. Like transgender people in many countries, they are sometimes the subjects of ridicule, abuse,
and violence. That said, they enjoy a certain level of acceptance due to their position in precolonial society.
For example, they are welcome at weddings where they will dance as entertainment for the men, and are
also welcome among the women. In Punjabi, there are referred to as khusra, and in Sindhi as khadro (‫)کدڙو‬.

Their presence in society is usually tolerated and is considered blessed in the Pakistani culture. Most khawaja
saras are deemed to have been direct cultural descendants of the court eunuchs of the Mughal era. Thought
to be born with genital dysphoria and afraid that they might curse one their fate, people listen to their needs,
give them alms, and invite their presence at various events and functions, e.g., birth of a child,
his circumcision or weddings. This mysteriousness that shrouds their existence was born of the fact that the

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khawaja sara communities live a very secretive life. In 2004, it was reported that Lahore alone has 10,000
active transvestites.

People have started accepting acts of sex reassignment surgery to change their sex as a norm either
compelled by gender dysphoria. There are situations where such cases have come into the limelight. A 2008
ruling at Pakistan's Lahore High Court gave permission to Naureen, 28, to have a sex change operation,
although the decision was applicable only towards people suffering from gender dysphoria.

In 2009, the Pakistan Supreme Court ruled in favor of a group of transvestites. The landmark ruling stated
that as citizens they were entitled to the equal benefit and protection of the law and called upon the
Government to take steps to protect transgender people from discrimination and harassment. Pakistan's
Chief Justice, Iftikhar Chaudhry, was the architect of major extension of rights to Pakistan's transgender
community during his term.

In 2010, the Supreme Court ordered the full recognition of the transgender community, including the
provision of free medical and educational facilities, microcredit schemes and job quotas for transgender
people in every government department.

In 2017, the Lahore High Court ordered the Government to include transgender people in the national
census.

In February 2018, a Senate committee determined that transgender people could inherit property without
being required to have their gender decided by a medical board.

Transgender Person (Protection of Rights) Act 2018

Under the Transgender Person (Protection of Rights) Act 2018, Pakistanis may choose to self-identify as male,
female, both or neither. They may express their gender according to their own preferences, and they may
have their gender identity of choice reflected on their documents, "including National Identification Cards,
passports, driver's licenses and education certificates."

The act defines "transgender person" as someone with a "mixture of male and female genital features or
congenital ambiguities," or, a male who "undergoes genital excision or castration," or, more broadly, "any
person whose gender identity and/or gender expression differs from the social norms and cultural
expectations based on the sex they were assigned at the time of their birth," which allows people to self-
identify as such. They are guaranteed the right to inherit assets and to run for public office.

Discrimination based on gender identity in employment and public accommodations is forbidden under the
new law. The Government is assigned broad obligations to provide medical and psychological assistance,
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small business loans and vocational training, sensitivity training for police and helping professionals, separate
prison facilities, and safe houses.

The bill unanimously passed the Pakistani Senate in early March 2018. On May 8, 2018, the National
Assembly voted to pass the bill. It was signed into law when acting President Muhammad Sadiq Sanjrani gave
his assent on May 18, 2018.

In August 2018, the School Education Department of the second largest province in the country, Punjab,
instructed its officials to guarantee equal access to schools to transgender children as per the Transgender
Persons (Protection of Rights) Act 2018. The department told its officials to include their gender when they
are being admitted to schools and give equal importance to transgender children during enrollment drives.
The department instructed its officials that the instructions were binding on government as well as privately-
owned schools in the province. Punjab became the first province to take practical steps in implementation of
the Act.

Acceptance in media and popular culture

"Passive" gay men in Pakistan are seen as effeminate men who only dress up like men but have the
characteristics of women. However, "active" gay men are not typically distinguished from heterosexual
males. Lesbians have very minimum focus and are mostly invisible.

In 2005, Ali Saleem, 28, the son of an army colonel, appeared on Geo TV's Hum Sub Umeed Se Hain as cross-
dressed Benazir Bhutto. So loved were his performances that he has taken to act to extremes on-air and
presents his own talk show where he appears as a dragged-up character named Begum Nawazish Ali. Begum
would almost always interview influential government ministers, e.g. pro-Jamait-e-Islami former Mayor of
Karachi Naimatullah Khan. His character self is often compared to Dame Edna Everage.

To raise awareness of LGBT issues, author Eiynah published a children's book called "My Chacha is Gay."
Toronto LGBT bookstores have added the book to their shelves in recent years. The topic of LGBT issues
remains taboo in Pakistan to discuss, despite curiosity. Relative to its total Google searches, for the year
ending 15 June 2013; Pakistan was the world leader for searches of the term "shemale sex", second in the
world for searches of "man fucking man", and third in the world for searches of "gay sex pictures".

On June 9, 2016, Vice News made a small documentary in which they showed different members of the LGBT
community in Lahore. Young men who are sex workers were shown in the video and they explained the
difficulties of being gay in Pakistan. The documentary also focused on some underground organizations that
work for basic human rights for the LGBT community. In the film, there is a short clip shown of a young boy

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getting beaten up and is later sodomized with a tree branch after he was caught in homosexual acts by
conservative religious society members. It also displayed how gay and transgender people use social media
apps like Tinder to get in contact with other people of the community.

In June 2016, a small clerical body in Lahore known as Tanzeem Ittehad-i-Ummat declared transgender
marriages legal under Islamic law.

In November 2016, Kami Sid, a transgender activist, did a photoshoot with photographer Haseeb M. Siddiqui,
stylist Waqar J. Khan and makeup artist Nighat Misbah, as a form of protest against the atrocities committed
against transgender people in Pakistan. One of those atrocities was the death of a transgender woman
named Alisha. Alisha died because there were delays in care due to an argument whether to put her in the
male ward or female ward of the hospital. While Pakistan has addressed a "third" gender when identifying
transgender people, Kami Sid believes more can be done. Sid is quoted as saying "We have to understand
that by just mentioning the third gender identity on your CNIC, the state has not done enough. It is not
enough that the government has fixed a two percent job quota either. No! It’s a protracted fight that we
have to continue to get equal opportunities". Before doing this photo shoot, Kami Sid was already a part of
two documentaries how Gay is Pakistan? And Chuppan Chuppai to shed light on what it means to be
transgender in Pakistan. In January 2017, Sid discussed a new movie she was starring in, Rani, in which she
played a transgender woman who finds an abandoned baby and raises it as her own. The movie was directed
by award-winning director Hammad Rizvi, and was produced by GrayScale. Kami Sid is hopeful that this will
have a positive impact on Pakistan's societal view of transgender people, much like the photoshoot. Hina
Pathani, another prominent transgender activist, starred alongside Kami Sid in Rani. Kami Sid was helpful in
confirming and disproving some preconceived notions of transgender people in the recent TV show Khuda
Mera Bhi Hai. Asma Nabeel, the writer of Khuda Mera Bhi Hai, was more than happy to ask questions for
clarification.

In March 2017, a well-known music band featured a transgender model Rimal Ali in their music video. Rimal
Ali has performed as an actress and model in many music videos to further her career.

Islamic Perspectives on Gender

In the Holy Quran, Allah the Almighty decrees that all human beings, whether male or female, are descended
from Adam and Eve (Surah An-Nisa 4:1). Men and women in Islam have different roles, responsibilities, and
accountabilities, as they differ in anatomy, physiology, and psychology. Islamic rites are the same for men
and women except that women, while menstruating, are not permitted to perform their prayers (solah), fast,
recite the Quran, or perform the Tawaf during the Hajj pilgrimage. (Once in their lifetime, if they can afford

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the journey, Muslim men and women go to Saudi Arabia to perform the hajj pilgrimage in Mecca and
Medina. One of the compulsory rituals involved in this pilgrimage is the Tawaf, where the Muslims move
counter-clockwise around the Kaabah seven times.) The exclusion from these activities are meant to give
women a rest, as many find menstruation discomforting, and not because the menstrual blood is considered
to be dirty.

Islam places great significance on the structure of the family as the basic unit of society, in which men and
women have important roles to ensure the maintenance of the family. Islam not only sanctifies the life of an
individual, but also tries to sacralize the social structures themselves by bestowing a religious significance
upon all social institutions and functions and by constituting within society relationships and rapports in
order to integrate all these different elements into a single people or ummah.

Islamic Definitions

Classical Islamic law, in terms of assigning legal rules, inter alia, explicitly recognizes four genders among
human beings: male, female, DSD/intersex (khunsa), and the effeminate male (mukhannath). The khunsa is
recognized in Islam, as the Prophet Muhammad (peace be upon him), according to the Sunnah, replied in an
answer to the question about how to determine the sex of a child born with two opposite sex organs, said
that the determining factor in such a case was the organ from which the child urinates (as narrated by Abu
Dawud, Vol. 4, p. 228. The Islamic scholar, Ibn Qudamah, defined khunsa as “a person with both male and
female organs or with an opening in place of a sexual organ from which he urinates.”

Classical jurists have divided the khunsa into two subcategories: non-problematic/discernible (khunsa ghayr
musykil/wadhih) and problematic/intractable (khunsa musykil). This was done in order to integrate the
khunsa into the social system and law. A khunsa ghayr musykil/wadhih is a person with both male and female
genitals who can be assigned a specific sex and gender based on which genital organ is the more dominant of
the two. For example, if this person urinates from the penis, ejaculates semen, or grows facial hair, he can be
regarded as male. Yet, if this person develops breasts and menstruation, she should be regarded as.

By contrast, a khunsa musykil is a person who cannot easily be categorized as either male or female, i.e., this
person continues to urinate from both the penis and the vagina. The above are the classical definitions of
khunsa musykil, but it needs to be emphasized that this religious categorization stems from an understanding
of anatomy predating the present understanding of embryology and modern imaging techniques. At present,
we are collaborating with Islamic scholars and other medical experts in DSD to update these Islamic
definitions to align with modern understanding of anatomy.

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AIS are considered to be of this second category, according to the fatwa from the Fatwa Committee National
Council of Islamic Religious Affairs Malaysia in 2006. With the advancement of modern medicine and its
associated technologies, however, doctors are more capable of determining a DSD individual’s appropriate
sex by investigating the person’s karyotype, gonadal tissue histology, and the internal reproductive organs,
and do not just depend on the appearance of the external genitalia.

Determining Sex and Gender of a Khunsa in Islam

Khunsa ghayr musykil/wadhih (Non-problematic/Discernible)

Before the advent of modern medicine and the associated technologies, to determine the sex of the khunsa
ghayr musykil/wadhih in Islam, one was to look for signs of “maleness” or “femaleness” in their external
genitalia or in the person’s other somatic characteristics. These signs can be observed during childhood. The
main sign, as decreed by the Holy Prophet (pbuh), is the organ from which the khunsa urinates.

Khunsa musykil (Problematic/Intractable)

Khunsa musykil is a person who urinates from both genitalia at the same time and is one in whom it is
difficult to ascertain the correct gender because there is no dominant male or female characteristic. Again,
this definition is the classical definition which predates modern understanding of anatomy; presumably, the
above definition refers to atypical external genitalia appearance. In this case, one has to wait and observe for
changes in puberty to ascertain the true gender of the khunsa musykil. One of the possible changes which
will indicate the person’s true sex is that the person will urinate exclusively from one of the two genitalia, or
most of the urine comes out from one genital as compared to the other, or the urine stream ends from one
genital rather than the other.

Other changes may be that the person attains menarche or develops breasts or develops a sexual attraction
to men or gets pregnant, in which case she is certainly female; or the person develops a deep voice or grows
facial hair or develops a sexual attraction to women, in which case he should be designated a male. Other
characteristics that may determine gender, but about which the Ulama (Muslim clerics) have conflicting
opinions, include the location or anatomy of the orifice from which a person ejaculates and the number of
ribs that he or she has. It is believed that females will have an extra rib compared to males as Eve (called
Hawa by Muslims) was created from the Prophet Adam’s rib.

According to Shariah law, in these cases of khunsa musykil, surgery may be performed if so advised by
medical experts to help ascertain the khunsa’s true sex, so that the person can be designated a certain
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Muslim. Surgery here means exploratory surgery to assess the person’s gonads or internal reproductive
organs.

Islamic Jurisprudence (Fiqh)

Imām Abū Hanīfah (d.769 C.E.), a famous Islamic scholar, defined Fiqh (Islamic Jurisprudence) as “the
understanding of a person’s rights and obligations (which are directly related to his actions)”.

The five major Schools of Islamic jurisprudence are: Hanafī, Mālikī, Shāfī i, Hanbali, and Ja’fari. The Hanafī
School is the most widespread in the Muslim world. Malaysia follows the Shāfī’i school of Islamic
jurisprudence.

Gender-Oriented Aspects of Islamic Jurisprudence (Al-Fiqh)

Many aspects of Islamic rituals, rights, or obligations are gender oriented according to Islamic jurisprudence
(Al-Fiqh). Examples of these are the conduct of the obligatory prayers (Solah), the Aurat (the parts of the
body that need to be covered under specific circumstances), marriage roles and obligations, bathing rituals
for the deceased, and the portions of wealth that can be inherited. Muslims are guided in their actions, their
knowledge and understanding of their rituals, and their rights and obligations by following Al-Fiqh or Islamic
jurisprudence. The various schools of Islamic jurisprudence differ in their rulings on these matters in regard
to the status of khunsa individuals.

Prayers (Salah)

There are several differences in the way Muslim men perform their prayers (also called Solah or Solat)
compared to Muslim women. Men are strongly advised to perform their daily prayers in the mosques in
prayer congregations, and it is compulsory for Muslim men to pray the Jumaat (Friday afternoon prayers) in a
congregation in mosques within their locality. Women are not advised to perform their daily prayers in the
mosque, and it is not obligatory for them to perform the Jumaat prayers at all.

During the solah jamaah, or prayer congregation, when Muslims pray together following the lead of the
imam, the position of the male adult is directly behind the imam, followed by male children, then the adult
females, then the female children. Another difference concerns the Aurat. For men, the Aurat is from the
navel to the knees, whereas, for women, the Aurat is the whole body except the face and the hands.

According to Islamic jurisprudence, the khunsa’s obligations in regard to the daily prayer are the same as
those of the adult female, i.e., it is highly recommended that the khunsa pray at home. The khunsa’s position
in the prayer congregation is right in the middle, behind the adult males and the male children and in front of
the female children and adult women. This is agreed upon by all the Islamic schools of jurisprudence.
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With regard to the compulsory Jumaat prayer, it is not obligatory for the khunsa to perform this prayer
together with Muslim men in the mosques, unless the khunsa’s gender has been determined to be male.

Concerning the khunsa’s Aurat during prayer, if it is still uncertain to which gender the khunsa belongs, the
khunsa should wear female attire (i.e., be fully covered except for the face and hands); however, if the
gender has been determined, the khunsa should follow that gender’s attire accordingly.

In terms of being an Imam, if the khunsa is still undecided on the gender to which he or she is assigned, then
the khunsa cannot be an imam for other men (i.e., cannot lead the prayers), but the khunsa can be an imam
for other khunsa and for women. Mohd. Al-Bakri, however, says that a khunsa may not be able to be an
imam for other khunsa as well as he/she may be a woman.

Inheritance Rights

In Islam, both men and women are entitled to inherit wealth and assets from a deceased relative. The
following verse in the Quran emphasizes this: “There is a share for men and a share for women from what is
left by parents and those nearest related, whether the property be small or large–a legal share”(Sûrah An-
Nisâ’4:7).

However, the portion or amount inherited by men is twice the portion or amount that is due women. The
reason for this is because, in Islam, a woman’s sustenance (provision of shelter, food, clothes) is required to
be provided for by men. Muslim woman is not required and not responsible to provide sustenance to, or for,
anyone. It is mandatory for a Muslim man, however, to provide sustenance to his wife and family members.
Hence, a Muslim man has greater need for wealth compared to a Muslim woman, in order for him to be able
to fulfill his responsibilities.

The persons entitled to the wealth and assets of a deceased Muslim include not only his or her children,
parents, and spouses, but also the extended family members. However, the presence of a son in the family
will preclude distribution of the inheritance to other members in the family; for example, the presence of a
son prevents the uncles, aunts, and grandparents from the inheritance altogether.

Before Islam, the Arab community would determine the sex and gender of a khunsa based on the genitalia
from which urine came out and, if the urine came out of both, the genitalia through which urine came out
first. This criterion was accepted by Islam and decreed by the Holy Prophet Muhammad (pbuh). This was
necessary to determine the portion of inheritance for the khunsa. Once the sex and gender of the khunsa
have been determined, then the portion of inheritance is given accordingly. This is agreed upon by all of the
Islamic religious scholars such as Ali, Muawiyah, Said b. Musayyab, and Jabir b. Said.

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In cases where the sex and gender remain undetermined, the various schools of Islamic jurisprudence as well
as the various Islamic scholars differ in their opinions about the portion of inheritance that a khunsa musykil
is entitled to.

The opinions of the Maliki and Hanbali schools as well as the scholars Abu Yusuf, Muhammad, Ibn Abbas, al-
Sya’bi, Ibn Abi Laila, and al-Thauri are that the khunsa musykil is entitled to half of a man’s share and half of a
woman’s share, because the actual gender is. Abu Hanifah, however, has stated that the khunsa should
receive the lowest and smallest portion of the inheritance.

According to the Shāfī’i school, as the khunsa musykil is prohibited from marriage and does not bear children,
such a khunsa does not have the status of father, mother, spouse, or grandparent when it comes to
inheritance, but may have the status of child, sibling, and sibling of the parent of the. Once the khunsa has
had children, then the sex has been determined. If the khunsa has impregnated a woman, then he is male. If
the khunsa has become pregnant, then she is female. So, in either case, the person is no longer khunsa
musykil but khunsa wadhih, and he or she will inherit according to the determined sex and gender. The
opinion of this school of Islamic jurisprudence is that in situations where the inheritance portion is the same
amount regardless of gender, then that amount should be given to the khunsa. However, in cases where the
portion of inheritance depends on gender, the khunsa cannot receive any inheritance until the gender has
been determined or the khunsa may receive whatever portion the other heirs and the khunsa have decided
to give according to the consensus of opinions among them.

Bathing Rituals for the Deceased

In Islam, bathing rituals of the body of the deceased are performed in a certain way before they are prepared
for burial. For Muslim men, the persons who are permitted to perform this bathing ritual onto the deceased
comprise all other men, his wife, and his Mahram (family members whom he is forbidden to marry, such as
his daughter, sister, mother, etc.). For Muslim women, the persons who are permitted to perform this
bathing ritual onto the deceased comprise all other women, her husband, and her Mahram (family members
whom she is forbidden to marry). There are also specific prayers which are recited for Muslim men, women,
male children, and female children.

The various Islamic schools of jurisprudence differ in their opinions about the obligation to perform the
bathing rituals, about how to bathe the deceased khunsa, and about who should perform the bathing rituals
for the khunsa.

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One opinion states that it is not obligatory to perform the bathing rituals for the khunsa at all; another is that
it is obligatory to do so and that this responsibility falls upon the Muslim men and women in that area as well
as upon the relatives of the khunsa. These opinions apply to the khunsa musykil.

According to the school of Maliki, the khunsa should be bathed properly according to the rituals, and the
cleaning of the body of the deceased should not be limited to tayammum, if there are the capacity and
facilities to do so. Tayammum refers to the alternative to ablution when there is no water to be found or for
some reason the person performing this ritual is unable to tolerate water or water is limited. Tayammum
involves using clean dust to clean one’s hands and face and is used as an alternative to ablution prior to
performing prayers. According to the school of Hanafi, the khunsa cannot be bathed by either Muslim men or
women, but tayammum is to be performed by the khunsa’s family members.

According to the Shāfī’i school, for a khunsa musykil who dies without having any close family members, if
the khunsa is still a child, then the body may be bathed by either men or women. Conversely, if the deceased
khunsa was an adult, then tayammum should be performed; yet, there is another opinion that the bathing
ritual can be performed with the body covered with cloth.

The Hanbali school is of the opinion that if the deceased khunsa is 7 years old or older and there are facilities
and the capacity to do so, then the body should be bathed; however, if not, then tayammum should be
performed without actually touching the body, i.e., by having the body covered with cloth.

The Islamic Perspective on Sex Change Surgery and Fatwas

Fatwa is defined as a formal legal opinion given by an expert in Islamic law. There are fatwas from different
Islamic countries which give rulings regarding sex change surgery or gender reconstruction surgery with
regard to both the khunsa and the mukhannath (the transsexual). These fatwas generally agree that gender
reconstruction surgery for the khunsa is permissible in Islam but prohibited in the case of the mukhannath.
For details on the position of Islamic jurists in the Sunni and the Shi’ah communities regarding the
mukhannath.

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Fatwa from Saudi Arabia/ Conclusion:

Al Jurayyan, a Professor of Pediatrics from King Saud University, Saudi Arabia, presented a set of guidelines or
recommendations on this issue based on the current Islamic fatwas put forward by the senior ulama council
in Saudi Arabia and the experiences of medical practitioners in Saudi Arabia. These fatwas are translated as
follows:

1. A sex change operation [in a non-DSD individual] is totally prohibited and considered to be criminal
in accordance with the Holy Quran and the Prophet’s sayings.

2. Those who have both male and female organs require further investigation and, if the evidence is
more suggestive of a male gender, then it is permissible to treat the individual medically (i.e., with
hormones or surgery) in order to eliminate the ambiguity and to raise him as a male and vice versa.

3. Physicians are required to explain to the child’s guardians the results of the medical investigations
and whether the evidence indicates that the child is male or female in order to keep the guardians
well informed.

Al Jurayyan stated that the dominant role of the male gender in the Muslim community should not overrule
Islamic laws, and he emphasized that these laws should not be ignored and be given due consideration.

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 Department of Shariah & Law

References:

 Abdullah, M. A., Katugampola, M., Al-Habib, S., Al-Jurayyan, N., Al-Samarrai, A., Al-Nuaim, A., … Niazi, M.
(1991). Ambiguous genitalia: Medical, socio-cultural and religious factors affecting management in Saudi
Arabia. Annals of Tropical Paediatrics, 11, 343–348. [PubMed]
 Ahmad, M. Y. (2010). Pusaka: Mengapa bahagian lelaki melebihi bahagian perempuan? [Why are men’s
portions more than females?]. Solusi, 88–89.
 Al Herbish, A. S., Al Jurayyan, N. A., Abo Bakar, A. M., Abdullah, M. A., Al Hussain, M., Al Rabeah, A. A., …
Al Samarrai, A. l. (1996). Sex reassignment: A challenging problem-current medical and Islamic
guideline. Annals of Saudi Medicine, 16(1), 12–15. [PubMed]
 Al Jurayyan NA. Disorders of sex development: Diagnostic approaches and management options—an
islamic perspective. Malaysian Journal of Medical Sciences. 2011;18:4–12. [PMC free article][PubMed]
 Al-Khim, M., Al-Bugho, M., & Asy-Syarbaji., A. (2009). Kitab Fikah Mazhab Syafie- Menghuraikan Bab:
Wakaf, Wasiat, Faraid [Fiqh Book of the Syafie School-Explaining Chapter on charitable endowment, wills
and inheritance]. (J. J. Ridzuan Hashim, Azizi Ismail, Mohd Asri Hashim, Salehan Ayub., Trans.; Vol. 5).
Kuala Lumpur: Pustaka Salam Sdn Bhd.
 Al-Oadah of Saudi Arabia. (2010). Rulings on transgender and sex-change
matters. http://www.islamtoday.com.
 Couch RM. Disorders of sexual differentiations. Medicine North America. 1987;14:2632–2647.
 Dessouky N. Gender assignment for children with intersex problems: An Egyptian perspective. Egyptian
Journal of Surgery. 2001;20:499–515.
 Ebrahim AFM. An introduction to Islamic medical jurisprudence. Durban: The Islamic Medical Association
of South Africa; 2008.
 Haneef SSS. Sex reassignment in Islamic law: The dilemma of transsexuals. International Journal of
Business, Humanities and Technology. 2011;1:98–107.
 Kamus I, Abd. Hamid. MAA, editors. Indahnya Hidup Bersyarat: Modul Fardu Ain Diri, Keluarga dan
Masyarakat Sepanjang Hayat [The beauty of life with conditions: A lifelong module of Fardhu Ain
(personal obligations of the Muslim) pertaining to self, family and community)] Kuala Lumpur: Telaga Biru
Sdn Bhd; 2009.
 Kuhnle U, Krahl W. The impact of culture on sex assignment and gender development in intersex
patients. Perspectives in Biology and Medicine. 2002;45:85–103. doi: 10.1353/pbm.2002.0011.

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