Gender Reassignment from the Perspective of Jurisprudence and Law (Book)
- abstract
Gender Reassignment from the Perspective of Jurisprudence and Law (in persian: تغییر جنسیت از منظر فقه و حقوق) is a book discussing the medical jurisprudential view written by Mohammad Mahdi Karimi Nia. In this work, he explores the juridical and legal issues surrounding gender reassignment. According to the author, this examination complements medical and psychiatric discussions. He believes that research on gender reassignment should be comprehensive and thorough; only then can correct and scientific frameworks be established regarding the topic. Therefore, perspectives that pronounce prohibitions and restrictions without considering the various dimensions of the issue may, upon review of these dimensions, lead to permissibility and endorsement. The author of this book states several reasons for writing it, including the lack of an independent work on this subject, its foundational and practical nature, providing an analytical scientific response to the raised questions, and showcasing the dynamism of Imamiyah jurisprudence in new subjects. He goes on to address issues related to the jurisprudential titles concerning gender reassignment, including evidences of permissibility, legal effects on family relationships, and issues of maintenance (nafaqa) and inheritance. The author contends that gender reassignment in its various forms is permissible for urgent cases according to most Shiite jurists. The implications of this matter on family rights and relationships change the rulings in each title, including the annulment of marriage contracts, discontinuation of maintenance obligations, and the retention of dowries, along with maintaining the father's guardianship post-gender reassignment, and custody for both parents. In the end, he points out the historical background of this issue in the medical field and also in jurisprudential works and the opinions of religious authorities. This book begins with a preface by the author and is structured into an introduction, four sections, and a conclusion.
Brief Introduction
The book "Gender Reassignment from the Perspective of Jurisprudence and Law" is a written work on the issue of gender reassignment, scientifically and analytically examining it from a jurisprudential and legal standpoint. The beginning of the jurisprudential and legal dialogue on gender reassignment can be traced back to Imam Khomeini's book "Tahrir al-Wasilah," which has introduced a new chapter in Iranian law. Mohammad Mahdi Karimi Nia presented this work as a fourth-level (PhD) thesis in the seminary. In the preface, he does not consider this book to be a fatwa or practical treatise, but rather presents the views of the juristic authorities and legal scholars for a more comprehensive analysis of the issue. He believes that research on gender reassignment should be comprehensive and thorough, allowing for the establishment of correct and scientific frameworks on the topic. Hence, sometimes prohibitive or impermissible views expressed without attention to various aspects of the issue may, upon considering these dimensions, lead to permissibility and endorsement. In the preface, the author of the book discusses his motivation for writing on this topic, stating that this work is not only a library resource but also the result of fieldwork and personal interviews with some individuals experiencing this issue. Ultimately, he presented this topic as a fourth-level thesis. After review and assessment at the Jafari Jurisprudential Center for publication, it was prepared for release. Mohammad Mahdi Karimi Nia holds a fourth-level (PhD) degree in Jurisprudence and Principles from the Qom Seminary and a doctorate in Quran and Sciences from Al-Mustafa International University.
Structure and Appendices
The book "Gender Reassignment from the Perspective of Jurisprudence and Law" is structured into an introduction, four sections, a conclusion, and appendices. The introduction discusses the subject and its significance, as well as the scholarly background of the topic. The concluding section summarizes the findings. The final section of the book includes eight appendices. The first appendix presents conversations with patients experiencing gender identity disorder, and the second appendix provides a detailed report of the first gender reassignment in Iran and abroad.
Conceptualization and Types
The first section addresses the preliminary discussions and generalities of the issue of gender reassignment in six chapters. The first chapter discusses the conceptualization of gender reassignment from the perspectives of linguistics, medical terminology, and jurisprudential terminology. The second chapter elaborates on the history of gender reassignment in Iran, England, the United States, and Egypt, while the third chapter examines the types of gender reassignment in humans, animals, and plants. Chapters four and five focus on the issue of gender identity disorder in transgender and intersex individuals. At the end of the first section, in the sixth chapter, the author discusses gender reassignment under Iranian law.
Evidence for Permissibility and Prohibition
This section is formulated in four chapters; the first chapter deals with evidence for the permissibility and prohibition of gender reassignment in intersex individuals. The second chapter investigates gender identification. The third chapter clarifies the issue of permissibility and prohibition of gender reassignment in healthy individuals and transgender individuals. The fourth chapter examines this issue concerning animals. Karimi Nia, in these four chapters, elucidates each of the titles related to gender reassignment in humans and animals, examining the opinions of jurists and religious authorities regarding its permissibility or prohibition. In the first chapter, while explaining intersex individuals, he initially presents the views of Shiite and Sunni scholars. He begins by noting that most Sunni jurists do not consider gender reassignment permissible, except in the case of intersex individuals. (p. 152) Shiite scholars, while recognizing a distinction between problematic and non-problematic intersex individuals, also endorse its permissibility. (p. 154)
Family Law
The content of the third section is organized from the standpoint of marriage, family, and related rights in four chapters. The first chapter addresses the continuation or cessation of marriage after gender reassignment through four discussions and six subsections. The second chapter elaborates on spousal maintenance after gender reassignment, while the third and fourth chapters investigate the issues of dowries and iddah (waiting period).
Spouses and Children
The relationships between spouses after gender reassignment are the focus of the fourth section of this book. This section is divided into four chapters, each consisting of several discussions and subsections. The first chapter addresses the kinship related to gender reassignment, examining how the gender reassignment of a brother or sister affects their relations with other relatives. The second chapter discusses child support and parental responsibilities influenced by gender reassignment in two discussions. The third chapter focuses on custody and guardianship of children. The final chapter examines inheritance in two discussions, each made up of several subsections.
Claims
In this work, Karimi Nia aims to prove several claims, including the comprehensiveness of the issue of gender reassignment, its potential solutions regarding specific psychological inclinations, and more.
Definition and Types of Gender Reassignment
The author believes that some jurists have defined gender reassignment in the same sense as its common understanding, which refers to the transformation of a woman into a man and a man into a woman (p. 47) and the conversion of an intersex individual to either a man or a woman. (p. 177) A more precise definition is the transition or modification of an individual's gender from male to female, female to male, intersex to male, intersex to female, male to intersex, or female to intersex. (p. 47) In addition, he categorizes the inclination towards gender reassignment not only for intersex individuals (who genuinely have a physical condition) but also concerning transgender individuals. Moreover, he states that this issue may also apply to changes in animals and plants. (pp. 57-62)
Permissibility of Gender Reassignment
The arguments that the author has presented as justifications for the permissibility of gender reassignment in individuals with ambiguous genitalia are: reliance on the principle of necessity and reliance on the principle of negating hardship. (p. 165 and 168) He notes that some Shia jurists classify gender reassignment into two categories: real and apparent. In cases of real gender reassignment in intersex individuals, it may sometimes be permissible, and in some cases, it may be obligatory. (p. 176) Karimi Nia, referring to the contemporary nature of the issue of gender reassignment, considers the definitions provided by jurists to be explicit in some cases and implicit in others; thus, he categorizes it into four types: transforming a woman into a man, a man into a woman, an intersex person into a man, and an intersex person into a woman. However, from a common understanding perspective, there are two additional categories that can be added: the transformation of a man and woman into an intersex person. (p. 177) He elaborates on the ruling regarding gender modification in non-problematic intersex individuals by distinguishing between female intersex and male intersex. If a female intersex individual, who possesses stronger feminine traits, wishes to transition into a woman, it is seen as a gender modification rather than a reassignment, and the laws applicable before surgery remain in effect. (p. 179) In the second chapter, titled "Gender Reassignment for Identifying Gender," the author claims that there is no evidence for the obligation of gender reassignment to establish a complete gender; however, if performing religious duties is not feasible without surgical intervention and gender reassignment, it is obligatory to reveal the true gender. (p. 194) The third chapter reviews the arguments of both proponents and opponents regarding the permissibility and non-permissibility of gender reassignment for healthy individuals and transgender people (trans individuals), concluding that there is no decisive and clear evidence prohibiting gender reassignment, and the arguments of the opponents are not acceptable. (p. 205) The only argument for prohibition pertains to the unlawful implications, such as issues regarding touch and sight. Other arguments include the principle of permissibility and a reference to the principle of personal autonomy. (p. 208) Another argument refers to the principle of necessity. (p. 210) The last argument is based on the principle of lifting restriction, a reference to Hadith. (p. 213) Following the refutation of the arguments against permissibility, the author believes that these arguments, including referencing the verse "And let them not change the creation of Allah," cannot be used to justify the prohibition of gender reassignment. (p. 231) The other arguments against it involve the imitation of men to women, the prevalence of homosexuality, the loss of primary body parts, and creating physical disabilities. In the final chapter, addressing the issue of permissibility and non-permissibility of gender reassignment in animals, he states that while some Sunni jurists consider it impermissible, Shia jurists deem it permissible in animals. (p. 255)
Family Law and Gender Reassignment
In the issue of the continuity or discontinuity of marriage concerning healthy men and women, Karimi Nia, based on the fatwas of authorities, believes that previous marriages are nullified and dissolved. (p. 276) Regarding intersex individuals with problems, he notes that the ruling on marriage, influenced by gender reassignment, varies due to the multiple forms of intersex conditions. (p. 277) In the second chapter of this section, while examining the issue of spousal maintenance after gender reassignment, the author claims based on the fatwas of authorities that if a man transitions to a woman, the previous marriage is annulled, and there is no obligation for spousal maintenance. (p. 282) In cases where a woman transitions to a man, the marriage is also nullified, and the obligation to provide maintenance is voided. (p. 283) Changes in either gender to an intersex individual, due to the complexities of intersex conditions, will result in the annulment of marriage and void any spousal maintenance obligations. (p. 286) The final section discusses temporary marriage, in which the issue of maintenance is fundamentally voided. (p. 288) In the third chapter, the issue of the woman's dowry is discussed under the title of gender reassignment. Initially, the dowry of a permanent marriage is explained, and four possibilities are considered, ultimately reinforcing the view that the entire dowry must be paid. (p. 305) Furthermore, regarding the dowry, which is one of the essential components of a temporary marriage, if the man changes gender, the entire dowry is paid. In contrast, if the woman changes gender, the dowry is reduced based on the duration of non-compliance. (p. 308) In the final chapter of this section, the issue of 'iddah' (waiting period) is addressed. The conclusion of this section is that the waiting period is, in any case, nullified. Although according to some, if the gender change does not involve a change in the female genitalia, the waiting period is not nullified. (p. 315)
The Relationship of Spouses with Children After Gender Reassignment
In the first chapter of this section, Karimi Nia claims that gender reassignment does not change the titles of father and mother to their opposites, but converts other titles such as sister, brother, uncle, aunt, and maternal uncle into their opposites. (p. 326) In the second chapter, he claims that maintenance obligations do not cease with gender reassignment of the father who has transitioned to a woman, but conversely, the maintenance obligation does not fall on the mother after her change to a male gender. (p. 334) The issue of guardianship over children also continues under paternal authority, but the mother does not gain guardianship rights after her gender transition. The right to custody is, in no case, nullified. (p. 343) The author's final claim regarding gender reassignment pertains to inheritance. He divides the overall issue into inheritance from parents and children and elaborates on the claim. For a child’s inheritance from their parents, the criterion for all Shia jurists is the current gender of the person, not the previous gender. (p. 346) Furthermore, if a gender change occurs after the parents' death and before the division of inheritance, the gender at the time of the parents' death is considered. (p. 347) The inheritance share of parents from a child is based on the gender at the time of conception, even if one or both parents have changed to their opposite gender. (p. 353) Other relatives also have their inheritance shares determined by their current gender. (p. 356)