The Nexus between Gender-Confirming Surgery and Illness: Legal-Hermeneutical Examinations of Four Islamic Fatwas

Abstract

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 Tạ ntạ̄ w¯ı, and Ayatollah Khomeini—this article argues that although the objection to the medicalization of the recipients ofGCSin 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.