Sunni Islamic jurisprudence, sex reassignment surgery and transgender rights
The Sunni religious establishment is resisting transgender demands by banning gender affirming surgery – while allowing “sex correction” for intersex people
“Today we are seeing an obsession with unwarranted sex change, which not only goes against basic human nature but is unanimously rejected by all revealed religions.” Ahmed Al-Tayeb, the grand imam of Al-Azhar – Egypt’s highest religious authority – made this statement on his Facebook page just two days after the Transgender Day of Remembrance 2021. To understand his position, one must examine how Sunni Islam views what’s known as gender affirming surgery, or sex reassignment surgery.
In many countries, sex reassignment surgery refers to operations that some (but not all) transgender people undergo so that their body aligns with their gender identity. However, the term is used differently in several Sunni Muslim-majority countries including Morocco, Saudi Arabia, UAE, Egypt, Kuwait, Jordan and Oman.
Modern Sunni Islamic scholarship started examining the issue of transgenderism in the 1980s, when several fatwas (religious rulings) were issued, most notably from Al-Azhar in 1988 and the Islamic Fiqh Council of the Muslim World League in 1989. Both fatwas used problematic concepts that pathologise transgenderism to address the issue.
The Al-Azhar fatwa stated: “It is permissible to perform the operation for a biological need, to reveal any hidden male or female organs,” but not “at the mere wish to change one’s sex from woman to man, or vice versa”.
“Sex change” vs “sex correction”
Thus, for Sunni clerics, there is a distinction between “sex change”, referring to gender affirming surgeries for transgender people, whose gender differs from the sex they were assigned at birth, and what they term “sex reassignment” or “sex correction”, by which they mean surgeries conducted on intersex individuals, who are born with characteristics that vary from what is considered typical for female or male bodies. Only the latter is permitted according to this interpretation of Sharia.
Following these fatwas, policymakers and medical authorities began to adjust their positions to bring them in line with the religious decision. In 2003, the Egyptian medical syndicate was the first to officially ban its doctors from performing “sex change” surgeries in its code of ethics. At the same time, it introduced a new term called “tṣḥīḥ al-ǧns”, which translates as “sex correction”, to allow sex reassignment surgeries for intersex individuals.
Others soon followed in Egypt’s footsteps and amended or introduced new medical responsibility laws to ban “sex change” surgery and only allow “sex reassignment” (or “sex correction”) for intersex people. Legislative changes were made in the UAE in 2016, Jordan in 2019, Oman in 2019, and Morocco in 2021, while Saudi Arabia and Kuwait have de facto bans through medical guidelines and judicial opinions.
Yasser Jamal head of the sex correction surgical centre at King Abdulaziz University Hospital in Saudi Arabia stated in 2018: “Sharia has prohibited sex change for normal individuals, we only perform sex corrections here and not sex change and only for people who biologically need it.”
Religious authorities should reform their positions on transgender issues and stop their interference in medical matters
In 2017, a similar statement came from Amin Al Amiri, assistant undersecretary at the Ministry of Health in the UAE: “We want to clarify the difference between the terms ‘sex change’ and ‘sex correction surgery’, as sex change surgery remains illegal in the UAE.”
In Egypt, in 2020, Osama Abdel-Hay, head of the medical syndicate’s sex correction committee indicated that the committee only approved intersex cases for surgery. Meanwhile, Morocco amended its civil status law in 2021 to only allow surgery and legal gender recognition for individuals medically identified as intersex.
As a result, transgender people in these countries who seek surgery are faced with having to travel abroad to countries like Thailand or Turkey. Or they can have the surgery in underground, expensive and ill-equipped clinics at home. The surgeries can be risky and lead to medical complications that these clinics can’t cope with, as was the case with Ezz El-Din, a 26-year-old transgender man who died after botched surgery in an underground Egyptian clinic.
Even those who are wealthy and privileged enough to find a way to have surgery are still faced with another major challenge – obtaining legal gender recognition (LGR). Because these Sunni Muslim-majority countries rely on principles of Sharia in their civil registration laws, judiciaries reject requests for new papers, citing Sharia as the reason.
In 2004, a Kuwaiti appeal court rejected a request from a transgender woman to be granted LGR; in 2016, an Egyptian administrative court refused the same request from a transgender man; and in 2019, the UAE’s Federal Supreme Court rejected a request from three transgender men.
These three judgements came from three different jurisdictions, but they all cited the same reason – that the plaintiffs underwent “sex change” surgeries and not “sex reassignment” surgeries. Therefore, they had violated Sharia and would not be granted LGR.
Denying LGR often leaves transgender people marginalised and vulnerable, facing limits on their rights to access healthcare, employment, and housing. Furthermore, authorities in these countries often use laws regarding “public decency”, “crossdressing” and “sodomy” to arrest, harass and prosecute transgender people.
In 2017, two Pakistani transgender women were “tortured to death” by the police in Riyadh, after authorities raided a house and arrested 35 people for “cross-dressing”. In 2020, a transgender woman was sentenced to three years in prison in Egypt for “inciting debauchery” and in 2021, a Kuwaiti transgender woman was sentenced to two years in prison and a fine of 1,000 Kuwaiti dinars ($3,315) for “misusing phone communication” by “imitating the opposite sex”.
All these policies and practices violate transgender people’s fundamental rights, including the right to health, education, employment, housing, enjoyment of life, bodily integrity and equality before the law. Authorities in Egypt, Oman, UAE, Jordan, Saudi Arabia, Morocco, Kuwait and elsewhere should allow transgender people access to gender-affirming medical care, should drop the term “sex correction” or “gender correction” and should revise the definition of “sex reassignment” to include the transgender population.
These states should also establish clear and accessible legal gender recognition mechanisms modelled on an individual’s right to self-identification. Furthermore, religious authorities should reform their positions on transgender issues and stop their interference in medical matters.
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