Is it permissible for a person who is biologically and physiologically a man or a woman to have an operation and be equipped with some of the features and organs of the opposite sex just because he/she feels as a member of the opposite sex?
Submitted by on Tue, 07/12/2010 - 11:17
Dear Brother / Sister,
It is not religiously permissible but haram for a person to change his/her gender as a result of gender reassignment surgery, which can be called as violation or degeneration, and then to marry.
According to that general judgment, it is never permissible for a person who is biologically and physiologically a man or a woman to have an operation and be equipped with some of the features and organs of the opposite sex just because he/she feels as a member of the opposite sex and he/she falls into depression; it is not regarded treatment but violation and degeneration. Therefore, those who fall into depression should be treated by specialists just as other people who fall into depression. If a person has a psychological disorder and thinks that his nose is a frog and his finger is a scorpion, no doctor will amputate his nose or finger.
Naturally, a woman feels like a woman and a man feels like a man. If there is a change or deviation in the feeling and interest in the opposite sex, it is necessary to attribute it to a disease, injury, or a disorder originating from heredity or education, not to the creation; and it is necessary to look for a remedy and treatment because what is not normal is abnormal and it needs to be improved.
However, the situation of the people who are defined as “khunsa” (hermaphrodite) in our fiqh books and who have the sexual organs of the both gender or do not have either of them fully is different. We can evaluate them as follows in short:
If there is a person who has the organs and features of both genders equally (khunsa al-mushkil), his/her psychology and the gender that he/she regards and feels himself/herself is taken into consideration, and action is taken accordingly; that is, he/she is regarded like that religiously and in terms of treatment and surgery.
If there is a person who does not have the distinctive organs and signs of the either sex, he/she is regarded like the person in the previous paragraph; his/her feelings and inclinations are taken into consideration.
The acts towards hermaphrodites in terms of daily life, clothes, tasattur, rights and debts, etc are to be based on the outcomes, transactions and assumptions.
The treatment of Allah toward His servants like that will be within the framework of justice, mercy and love as long as they obey Allah and worship Him regarding the issues that are under their will. If they disobey Him, they will be treated normally like His other servants who commit sins.
(Prof. Dr. Hayrettin Karaman)
Marriage of Hermaphrodites:
The view of the scholars regarding the issue are as follows:
According to Hanafis, if a hermaphrodite is forced into marriage by his/her father to a man or woman before he/she reaches puberty, the marriage is suspended. It is necessary to wait until he/she reaches puberty. In case of such a marriage, when one of the spouses dies, the other cannot be a heir to him/her.1
When the hermaphrodite reaches puberty, if he/she turns out to be a man or woman, the marriage will be valid if the spouse is from the opposite sex. That is, if the hermaphrodite was assumed to be a girl and married a man and she turned out to be a girl when she reached puberty, the marriage would be valid. If she turned out to be a boy, the marriage would be invalid.
If two hermaphrodites get married, one of them assumed to be a man and the other a woman, it is necessary to wait until their gender becomes certain. If their gender becomes certain and if both of them turn out to be men or women, the marriage becomes invalid. If one of them turns out to be a man and the other a woman, the marriage will be married.2 If their gender does not become certain, that is, if they remain as hermaphrodites, their marriage will be invalid.
If the hermaphrodites do not know each other and if their fathers make them marry, their marriage is valid because one of the fathers said his child was a man and the other said his child was a woman. Unless the opposite is known, their words are legally valid.3
According to a view of Malikis and Shafiis, it is forbidden for a hermaphrodite to marry in both ways; that is, a hermaphrodite cannot marry a man by being regarded as a woman, nor a woman by being regarded as a man.4
Hanbalis disagree on the issue of marriage. According to Hiraqi, the hermaphrodite is asked about himself/herself. If he/she says he/she is a man and is interested in women, he/she can marry a woman. If he/she says he/she is a woman and is interested in men, he/she can marry a man. According to Abu Bakr, it is not permissible for a hermaphrodite to marry until his/her state becomes certain.5
Today, if a hermaphrodite wants to marry, he/she should be able to get married after his/her gender is determined based on the criteria of medicine, clues and his/her own statement, and his/her upbringing state up to that time and after it is decided that he/she can marry.
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