07/12/2016 04:21 EDT | Updated 07/12/2016 04:59 EDT

Pakistani Clerics Must Consult With Khawaja Siras Before Issuing Fatwas

Judging on what is apparent and leaving the hidden to Allah ~ al-Nawawi

Khawaja Siras is a cultural identity in that may be loosely translated as trans persons. In the aftermath of recent horrific violence faced by the khawaja siras in Pakistan, a group of Sunni clerics issued a fatwa (legal opinion) sanctioning their rights including that of marriage. However, by skirting dialogue with the khawaja siras community, the clerics may have failed to maximize their potential.

The fatwa forbids the humiliation of khawaja siras and allows them the rights of inheritance and burial in a Muslim cemetery. However, judging on apparent anatomy, the clerics restricted the right of marriage to those who could be subsumed to the binaries of male and female. They seem to have based their fatwa on the categories of sexual minorities found in the medieval legal manuals - the khuntha (intersex persons).

The khuntha are classified into two categories. The khuntha ghayr mushkil are those whose biological gender can be determined based on external predominate anatomical features. Pakistani clerics have allowed the marriage right to those khawaja siras who can be subsumed into this category. The khuntha mushkil are those whose biological gender is indeterminate based on anatomical features. Pakistani clerics have prescribed permanent celibacy to this group. Their reasoning often alludes to the tests of life or Allah's will.

It is obvious from al-Nawawi's quote above that in taqlidi (imitation) style, Pakistani clerics remain consistent with the medieval legal manuals by judging solely on apparent attributes. The overwhelming majority of Pakistani clerics follow the Hanafi school of jurisprudence, which does not hold the marriage of the khuntha mushkil as valid. However, before condemning them to permanent celibacy, they can draw from the diversity that exists within the extant Sunni and the Shia schools of jurisprudence.

Despite the focus on the exterior, one valid opinion within the Hanbali school of jurisprudence, captured in the Kuwaiti Encyclopedia of Fiqh, actually emphasizes the hidden attributes as follows.

Hanbalis disagree on the issue of marriage. According to Hiraqi, the intersex persons are asked about themselves. If they say they are male and interested in women, they can marry a woman. If they say they are female and interested in men, they can marry a man. This is because only they can decide and no one other than them can decide in this matter. So, their word is accepted just as the word of a female is accepted when she says that she has having a menstruating period. The khuntha may know themselves according to their desires, that is, which of the two genders they desire.

Shia jurists like al-Yazdi hold similar opinions. According to my co-author Hussein Abdullatif, the jurists who allowed the khuntha mushkil to marry according to their inner disposition allowed them to do so based on the gender they were attracted to as opposed to the anatomy they found desirable.

Such legal opinions make it clear that the khawaja siras should be consulted in the formulation of legal opinions on marriage for they alone are able to know their gender. This would, however, require the Pakistani clerics to forgo the emphasis on the apparent and instead base their fatwa on the hidden attributes.

This emphasis on the hidden attributes is bolstered in the fatwa on gender re-assignment surgery from the late Muhammad Sayyid Tantawi, grand Imam of Al Azhar in Egypt. Unlike the Pakistani clerics, Tantawi focused on khuntha nafsiyya (psychological intersexuality) and despite external anatomy emphasized the buried male or female nature of the individual. Likewise, Dr. Vardit Rispler-Chaim writes in her book Disability in Islamic Law, that in the determination of gender, psychological and emotional inclinations also need to be examined apart from external attributes.

However, Pakistani clerics seem concerned about "fake khawaja siras" undergoing nirvan (ceremonial operation) and having anal intercourse, which are both considered prohibited. If they had actually consulted with the khawaja siras, they would have found that neither concern is justified. Indeed consulting them is necessary as, according to Dr. Hashim Kamali at the International Institute of Advanced Islamic Studies, distinguishing between the various categories "may admittedly not be self-evident," and that "the fiqh (jurisprudence) tradition, too, has moved beyond simplistic categories."

Have Pakistani clerics wondered that nirvan is perhaps a form of gender reassignment surgery by those who cannot afford expensive medical procedures? While they may argue that tampering with Allah's creation is forbidden, it is also true that both Sunni and Shia scholars have allowed for gender reassignment surgeries.

Shia scholars like the late Sayyed Fadlallah base their opinion on the juristic principle that what is not expressly prohibited is in principle permissible. According to Rispler-Chaim, jurists like Ayatollah al-Khaminai have allowed the procedure for males who emotionally and sexually incline toward female behaviour or appearance. Sunni scholars like Tantawi have even obligated the procedure to reveal the hidden gender.

The concern on anal intercourse is also unwarranted. The issue at hand is one of intimacy and not a particular sexual act. The following words of a khawaja sira shed light on the real concern at hand.

I often wonder, why I cannot get what I deserve. ... Everyone is aware of his or her sensitive feelings. ... Obviously, everyone wants their tender desires to be fulfilled by someone. If deep feelings do not get satisfied, how will that person feel? Isn't it a sad thing?

Such poignant words necessitate that Pakistani clerics consult with the khawaja siras before issuing fatwas. Why? Because human lives are at stake and we do not play jurisprudential games with lives.