Sex Reassignment Surgery in the View of the Shia Jurists

In this paper, after explaining the reasons for the “sex reassignment”, a review of related jurisprudential rulings issued by the famous Imamiya jurists will be presented.

Physical and non-physical problems in the realm of sexual matters have a long established tradition but they have attracted growing attention in the twentieth century. Perhaps the famous German sexologist, Magnus Hirschfeld, who performed the first surgery on an artist called Lili Elbe, did not know what controversies his act would cause[1].

In this paper, after explaining the reasons for the “sex reassignment”, a review of related jurisprudential rulings issued by the famous Imamiya jurists will be presented.

1. Reasons for sex reassignment

Sex reassignment surgery is performed to change the physical sex of an individual. Those who undergo this surgery to assume a female sex will develop female genital organs such as vagina and vulva. Metoidioplasty is a type of penile surgery for female transsexuals. There are other surgical procedures to make a person appear like the opposite sex, but our discussion is restricted to the jurisprudential rulings related to sex-reassignment surgery.

Sex reassignment is performed for the following reasons:

1.Physical problems: (Hermaphrodite orintersex), who are referred to as “Neutral” in the jurisprudential literature, are of two types: Complicated (Moshkel) and Simple (Gheyre Moshkel). Ahermaphrodite, who based on features specified in the sharia or other ostensible evidences, is associated with the male or female sex is called Simple and the hermaphrodite who lacks such features is described as complicated.

2.Non-physical problems: (transsexual, T.S. or Trans) It describes individuals with inconsistent gender identity; for example, a person has male genital organs, but her personality is feminine or vice versa. This contradiction may be evident in thoughts, private behavior or social behavior. It should be noted that individuals with gender disorder and dysphoria, androgyies, or bigenders are also assigned to this category. Groups like Fa’afa fine and hijra can also be put in this category.

3.Physical and non-physical problems: Some individual may face both physical and non-physical problems, the most important of which are genderqueer.

 

1. Jurisprudential ruling on sex reassignment surgery

The Imamiya jurists who endorse this surgery draw a distinction between sex change and revealing the true sex of a person, as will be described below:

Imam Khomeini: “A male-to-female sex assignment surgery and vice versa, or a hermaphrodite’s decision to overtly subscribe to one of the two sexes, is apparently not forbidden. It is contingent upon the fact that the person in question truly belongs to a gender and it is possible to change his genuine sex to another one.[2]

With this assumption, if a female finds masculine emotions and desires in her heart, or witness some signs characteristic of masculinity along with tendencies of the opposite sex or some of its effects, it deems that the sex change is not obligatory. If one ascertains before the surgery that s/he belongs to the opposite sex, and surgery will not change his/her sex, but rather reveals what is hidden inside. In this case, although there is no reservation regarding the necessity of manifesting real gender effects, changing the face and revealing the true sex is not obligatory unless the fulfillment of religious duties or part of them is contingent upon it and it is not a violation of divine prohibitions. In this case, it is obligatory to change sex and to reveal real and genuine sex. “

Ayatollah Sistani: “If sex reassignment is intended to cut off the male organ by surgery and replace with a conduit for urine or artificial penis, and induce feminine signs such as the shedding of facial hair and chests by injecting hormones, or in case of a woman, to make an artificial male reproductive organ, and to create a masculine signs such as shrinkage of breast and growth of hair by hormone injections, this does not indicate a real sex change, and the religious rulings will be the same. Further, since it involves revealing and touching sexual organs, it is not permissible.

Nonetheless, if it is designed to change the internal and external genitals that are characteristic ofmales and females, it will be permissible irrespective of requirements that may be religiously problematic. However, this has not been achieved so far and what is commonly practiced is the change of appearance that does not involve any change of religious rulings. [3]

Of course, for those with abnormalities in the reproductive system, it may be possible to exhibit a hidden male genital in a man with feminine appearance that lacks female reproductive genitalia or cut off the masculine organ of a woman that has female reproductive system. This is not forbidden per se, as it has nothing to do with the sex change, but if it involves unlawful looking or touching, it will only be permissible if failure to do so will provoke extreme hardship and difficulty. “

Ayatollah Khamenei: “Query: Some people are ostensibly male, but they are psychologically and emotionally female and obvious feminine tendencies and preferences so that failure to change sex may be corruptive for them. Is it permissible to treat them surgically?

Response: The said surgery for discovering and revealing their true sex is not illegal, provided that it does not involve a forbidden act or other associated vices. “

Ayatollah Makarim Shirazi: “There are two aspects to the sex change: sometimes it is purely evident in the appearance; that is, there is no sign of the opposite sex’s genitals, and it only involves a formal surgical procedure to unravel something that resemble an opposite sex’s genitals. This is absolutely forbidden and should be avoided. Any marriage based on it will be illegal and null and bring religious punishment for the couple. In some cases, however, it is genuine. That is, the surgery reveals the opposite sex’s genitals. This not only is inherently permissible without any religious prohibition, but also obligatory in some cases, especially when the opposite sex’s genitals are hidden inside that person. Nevertheless, since the surgery requires looking and touching, it is only permissible upon necessity. “[4]

1. Religious ruling after sex change

In the following, some jurisprudential rulings related to the subject of sex change are presented:

1.Relative and causal relationships

Q: After the change of sex,

1. Will a father still be responsible for the guardianship, child support and custody of his children?

2.With regard to the rights of a wife, what legal or religious laws allow the dissolution of the marriage? Divorce,annulment or otherwise?

2. Is it possible to say that a marriage renders void automatically after the sex change and the court, irrespective of the divorce and termination of the marriage and its related rules, solely on the basis of the sex change, annuls the marriage contract and orders the separation of the couple without legal formalities while preserving the financial rights of the wife?

In other words, is it possible that, like the demonstration of heresy,the court announces the separation?

3. In the event of the death of aspouse before the annulment of the contract, would it alter the inheritance?

 Do they inherit from each other? In the event of a child’s death, how the heritage should be divided?

4. What is the verdict for a woman whose obligatory rights are not met considering the severity of her emotional needs and the craving for her husband?

If marriage contract is rendered void, shall the period of waiting (iddah) be applicable to the woman in relation to the husband’s death or separation?

Ayatollah Khamenei: apparently, he does qualify as a father.

Ayatollah Makarim Shirazi:

With regard to the child’s rights, given that he is the father and the child has been conceived by him, his paternal obligations will be still valid.

In relation to wife’s rights: 1. Themarriage contract is automatically terminated.

2. It is gathered from the above answer.
3. Given that the marriage has been annulled, the wife is not beneficiary to the inheritance, and in the case of the other heirs, the father’s inheritance verdict will be in effect.
4. As the marriage is void, a woman can remarry after the waiting period (iddah) has passed.

 

2. Sex determination

Ayatollah Makarim Shirazi: In modern time, when it is possible to identify the predominant sex of an individual and then reinforce and reveal that dominant sex with surgery, the cases of complicated hermaphroditeare extremely rare. Even with the assumption that both sexes are equal, removing one sex by surgery would be permitted. However, in people whose dominant sex is known, that sex should be strengthened and the exterior sex change is prohibited for them or normal people.

Query: 1. Is the doctor allowed to preserve masculine appearance despite female nature in case of pseudo-hermaphroditism?

2. If a female pseudo-hermaphrodite, marries a normal woman, what will be the legal obligation of the physician is performing surgery to preserve her masculine appearance?
3. In the case that a female pseudo-hermaphroditeis still unmarried, considering that her marriage with a woman, in spite of appearance transformation in surgery, would be in essence the wedding of two women, what will be the physician’s obligationin terms of performing the surgery for maintaining masculine appearance?
4. In the event that a female pseudo-hermaphroditemarries a woman and the doctor discovers her intersex condition, would the doctor be obliged to reveal secrets? (Concealing this secret will lead to the marriage or continuation of the marriage of two women, and disclosing his secret will be inappropriate, as the person does not consent to its disclosure). What shall be the best course of action for the doctor?

5. Is the doctor authorized to perform surgical procedures to preserve feminine appearance in cases of male pseudo-hermaphroditism, who despite their feminine appearance are essentially male?

Ayatollah Makarim Shirazi:

1. It is not permissible
2. The doctoris obliged tourge theminto separation, since their marriage is void.
3. It is not permissible
4. It is desirable to inform them of the illegitimacy of this marriage.
5. It is not permissible.

3. Obligation with respect to the past and future religious acts

Ayatollah Makarim Shirazi: The bisexuals, if their primary sex is, for example, female, and they have been practicing male religious duties so far, must now perform femalereligious deeds, andthey shall not be held accountable forpast deeds before discovering their primary sex.

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References

[1] For example, Facial Feminization surgery (FFS) is a surgical and reconstructive procedure that transforms male facial features into female ones. It includes bone surgery such as eyebrow lifting, nose surgery, cheek implant, and lips prosthesis. In most cases, this surgery may be more beneficial than FFS and comforting for the individual. For more information see:

https://en.wikipedia.org/w/index.php?title=Facial_feminization_surgery&oldid=829462752.

4. There are different types of hermaphroditism :
5. Female pseudo- hermaphroditism: The person is genetically and chromosomallyfemale, but has a masculine appearance.
6. Male female pseudo- hermaphroditism: The person is geneticallymale, but has a small or hidden penis.
7. True hermaphroditism: It refers to individuals who have both unequivocal ovarian tissue and testicular elements. (https://en.wikipedia.org/wiki/Hermaphrodite)

 5 . Intersex: it refers to individuals with different sexual features; that is, they have sexual organs of one sex (primary attributes), but facial hair, tone of sound, body fat distribution, bone structure and muscle endurance (secondary attributes), which are characteristic of the opposite sex. RE:

Fausto-Sterling, Anne (2000). Sexing the Body: Gender Politics and the Construction of Sexuality. New York: Basic Books. ISBN: 0-465-07713-7.

6. The features according to which hermaphrodites can be attributed to one or two male and female sexes are:

1 Permanent or predominant discharge of urine from one of the two genitals.

2 In case the urine is discharged from both genitals, there is a permanent or predominant discharge from one of the genitals.

3 There is a delay in the cut-off of urine from one of the two genitals under the assumption of simultaneous discharge of urine  (The above points are based on the conventional beliefs)

[2] If the right and left chest ribs are equal, the person is female and otherwise he will be male. (This has been suggested by some jurists)

That the above signs are the only criteria for identifying and attributing either male or female gender, along with other evidences and features such as facial hairs and menstruation has been the cause of disagreement among jurists. (Javaher al-Kalam, 39, p. 280; Tahrir al-Wassilah, p. 3; p. 399; the jurisprudence dictionary according to the tradition of Ah al-Bayt (AS), vol. 3, pp. 505-510)

  Transsexual Trans Or T.S.

8. It should be noted that in the two official and original guides of physicians and specialists in the world, transsexuality is classified as sexual identity disorders, and various signs have been introduced to verify its features; so far, many researchers and medical centers have attempted to provide a classification of transsexuals. . See more at:

American Psychiatric Association. (1987). Diagnostic and Statistical Manual of Mental Disorders (3rd ed., Rev.). Washington, D.C. : Author

http://www.advocate.com/politics/transgender/2012/07/23/dsm-replaces-gender-identity-disorder-gender-dysphoria.

9. Gender dysphoria: It describes a condition in which an individual thinks that the relationship between his/her gender identity in the society and his/her perceived individual is broken. This individual is definitely transsexual or transgender, and there is a contradiction between sex and gender. In other words, gender dysphoria implies constant discomfort and dissatisfaction of the person with hi sexual characteristics of his/her body and the desire to be acknowledged by the opposite sex.

http://medical-dictionary.thefreedictionary.com/gender+dysphoria.

 10 .Androgyie: It is combination of masculinity and femininity in a person. Gender ambiguity may appear in the fashion industry, gender identity, and sexual relations. It can also be attributed to the voice or singing of a person as well.

https://www.youtube.com/watch?v=uHwSaQ9H_18.

11. Bigender: It describes people whose social behavior borders between males and females.

The difference between bisexuals and Androgyie is that bisexuals border between masculine and feminine behaviors. That is, they may display male and female manners, feminine or masculine voices, etc.  Androgyie, however, demonstrates feminine and masculine features at the same time. In fact, bisexualsbehave in a perfectly feminine or masculine way at a moment, while an Androgyie displays a combination of both male and female behaviors.

https://en.wikipedia.org/wiki/Bigender.

12  .Fa’afafine: A group of people from dispersed islands of Samoa that are considered to constitute the third-gender. For more information, see: Bartlett, N. H.; Vasey, P. L. (2006). “A Retrospective Study of Childhood Gender-Atypical Behavior in Samoan Fa’afafine”. Archives of Sexual Behavior. 35 (6): 659–66. doi:10.1007/s10508-006-9055-1. PMID 16909317.

13.Hijra: It refers to a person with male body and genitals, but feminine behaviors, who tries to pass herself off as a man in the society and wear women’s garments.

https://en.wikipedia.org/wiki/Hijra_(South_Asia).

14. Genderqueer: It describes people who do not have a normal gender. They could be divided into the following groups: both male and female (e.g. bisexual s), neither male or female (e.g. Khajh or asexual; on the female and male spectrum (e.g. bisexuals); the tri-sexual or other sexes (e.g.hijras or individuals who assume to have a new gender ; people who have an ambiguous or unclear gender or sex: those who do not think of themselves as having a sex distinct from male and female, but consider themselves as queers.)

https://en.wikipedia.org/wiki/Genderqueer.

  . Tahrir,alWassileh vol.2, Issues surrounding sex change”” issues 1 and 2.

¹⁶ .https://www.sistani.org/persian/qa/0863.

17. Seyyed Ali Khamenei, Ojubat al- Estefta’at, pp. 1279 and 1280.

¹⁸.https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=46871&mid=262539.

https://makarem.ir/main.aspx?typeinfo=21&lid=0&mid=262538&catid=46871.

https://makarem.ir/main.aspx?typeinfo=21&lid=0&mid=262537&catid=46871.

²⁰.https://article.tebyan.net/290181/.برخی-احکام-تغییر-جنسیت

²¹.https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=46871&mid=263971.

²².https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=46871&mid=262544.