Inheritance and Sex Reassignment (Book)
Inheritance and Sex Reassignment (ارث و تغییر جنسیت) is a book by Mohammad and Mahshad Davoudabadi in the field of family jurisprudence (*Fiqh al-Usrah*) and medical jurisprudence (*Fiqh al-Tibb*). By examining jurisprudential viewpoints, the authors consider sex reassignment permissible in cases such as problematic hermaphrodites (*Khuntha Mushkil*) and transgender individuals. To prove their viewpoint, they have relied on evidence such as the necessity of treating an illness, the No-Harm rule (*Qa'idah La Darar*), and necessity (*Idhtirar*), and they critique the arguments of the opponents (such as the prohibition of altering creation).
| Inheritance and Sex Reassignment (Book) | |
|---|---|
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| Book Information | |
| Author | Mohammad Davoudabadi and Mahshad Davoudabadi |
| Subject | Medical Jurisprudence and Family Jurisprudence |
| Style | Analytical |
| Language | Persian |
| Publication Information | |
| Publisher | Roza |
- Abstract
In the discussion of inheritance, they do not view sex reassignment as an obstacle to individuals' inheritance, because in jurisprudential and legal sources, sex reassignment is not considered among the impediments to inheritance (*Mawani' al-Irth*). Nevertheless, they believe that spouses must obtain the consent of their spouse for sex reassignment, because in some cases, sex reassignment causes the loss of the spouses' rights and in some cases leads to the dissolution (*Infasakh*) of the marriage contract.
This work faces the flaw of verbosity, and discussions have been raised that have no effect on the conclusion of the debate. Furthermore, in some instances, a scientific approach has not been observed.
Introduction to the Book
The book Inheritance and Sex Reassignment is a joint work written by Mohammad and Mahshad Davoudabadi in the field of medical jurisprudence and family jurisprudence. This book was published by Roza Publications in 200 pages.
In addition to the viewpoints of Shia jurists (with an emphasis on the fatwas of Imam Khomeini) and Sunnis, the authors have also stated the viewpoints of other divine religions regarding sex reassignment and refer to the perspective of the civil law of Iran and the world.
Structure
The book begins with a table of contents and an introduction by the authors and ends with a bibliography. The main discussions of the book are organized into six chapters. The first four chapters are dedicated to subjectology (*Mawdhu'-shinasi*); the first chapter is devoted to the definition of sex reassignment and its types, and in the second chapter, sexual identity and its types are explained, in the third chapter, apparent sexual disorders (intersex individuals), and in the fourth chapter, internal sexual disorders (transgender individuals) are elucidated. Jurisprudential discussions are mostly seen in the fifth and sixth chapters; in the fifth chapter, the ruling on sex reassignment in divine religions and Islamic denominations is stated, and in the sixth chapter, the authors address the impact of sex reassignment on individuals' inheritance as well as the continuation or non-continuation of the marital bond.
Inappropriate Structure and Unscientific Approach
This book does not possess proper literary editing. This shortcoming, in addition to typographical errors, has caused difficulty in understanding some phrases. Among the content-related flaws, one can mention verbosity; such as presenting detailed jurisprudential discussions regarding the rulings on the hermaphrodite (pp. 63-80) and inheritance (pp. 145-163), which have no impact on the ruling of sex reassignment. Also, in some instances, the jurisprudential discussions of Shias and Sunnis have been mixed together, and distinguishing them is not easy except for specialists (for example: pp. 94-96).
Heterogeneity and lack of scientific cohesion are other flaws of this work; for example, the authors, who in the opening discussions of the book called the surgical operation for a hermaphrodite "sex determination" and excluded it from the discussion of sex reassignment (p. 25), have described the exact same operation in the fifth chapter under the title of "sex reassignment" and have examined its rulings in detail (pp. 102-110). Research flaws are also evident; including the incorrect attribution of works to authors (such as attributing the book *Al-Sara'ir* by Ibn Idris al-Hilli to Allamah al-Hilli) and the incorrect and inverted translation of jurisprudential phrases (pp. 100-101). In addition, in stating the viewpoints of other religions, scientific methodology has not been observed; such as relying on general phrases from holy books (p. 103) or deriving the viewpoints of religions by visiting places of worship (p. 109), without referencing the authoritative jurisprudential texts of those religions.
Delineating the Scope of Sex Reassignment in Jurisprudence
In the first chapter, after defining sex reassignment and stating its history (pp. 13-22), the authors exclude some types mentioned for sex reassignment from the realm of the true definition of sex reassignment and its jurisprudential rulings, in cases such as sex reassignment in *Mamsuh* individuals (individuals lacking genital organs) or amputees. They consider sex reassignment in hermaphrodites to be included in this discussion only if the individual is an unproblematic hermaphrodite (*Khuntha Ghayr Mushkil*) and wishes to change their sex to the opposite sex; however, an unproblematic hermaphrodite who wishes to remove their superfluous organ is not included in the issue of sex reassignment; just as jurists consider the surgical operation of a problematic hermaphrodite as sex determination, not its reassignment (pp. 24-25). In the second chapter, the authors define sexual identity and state the criterion for determining sex in individuals in three forms: apparent, internal, and internal-internal (genetics) (pp. 27-29).
Sexual Disorders: From Hermaphroditism to Transgenderism
In the third chapter, apparent sexual disorder (hermaphroditism) and its types are examined from the perspective of divine religions and medical science. The authors point out the disagreement among jurists regarding the exclusivity of sex to male and female, or the hermaphrodite having a third sex, and they consider the first opinion to be in agreement with the viewpoint of the majority of Shia and Sunni jurists, deeming verses and narrations to be in accordance with it (pp. 37-44). They mention the viewpoint of Shia and Sunni jurists who append the unproblematic hermaphrodite to male or female, and subsequently address the jurisprudential criteria for determining the sex of the hermaphrodite (such as the initiation or cessation of urination, as well as the number of ribs). For this purpose, the viewpoints of Shia and Sunni jurists, the viewpoints of physicians, as well as the narrations relied upon by them have been examined, and the authors call the content of some narrations that indicate a difference in the number of ribs between women and men contrary to medical science, thereby rejecting them (pp. 47-60). Further in the book, the rulings on the problematic hermaphrodite that have been stated in Shia and Sunni jurisprudence as well as other religions are recounted (pp. 63-80).
In the fourth chapter of the book, the issue of transgender individuals is discussed, and Imam Khomeini is mentioned as the first jurist who has commented on it. Continuing this section, the causes of transgenderism, its symptoms, and how to treat it are explained (pp. 83-91).
Permissibility of Sex Reassignment for the Problematic Hermaphrodite and Its Evidence
According to the authors, Muslim jurists and followers of other divine religions do not disagree on the permissibility of sex reassignment for the problematic hermaphrodite and the *Mamsuh* (p. 93); rather, some jurists have considered it obligatory (*Wajib*) (p. 101). They have relied on eight reasons for the permissibility of sex reassignment, some of which are as follows:
- Evidence indicating the necessity of treating an illness; The authors recount a narration from Shia sources and a narration from Sunni sources based on which God has sent down a cure for every pain. They have deemed the condition of the problematic hermaphrodite as a kind of illness, and have considered sex reassignment as its treatment (p. 94).
- Absence of narrational evidence for prohibition (p. 94);
- Non-inclusion of sex reassignment under the evidence prohibiting men imitating women and vice versa; In the Sharia, there is evidence that forbids men from resembling women and vice versa, as well as deception (*Tadlis*) in this regard. The authors do not consider sex reassignment to be encompassed by this evidence (p. 95).
- The No-Harm rule (*Qa'idah La Darar*) and the Hardship and Difficulty rule (*Qa'idah 'Usr wa Haraj*); Remaining in the state of a problematic hermaphrodite necessitates harm and hardship, which have been negated in the religion (p. 96).
- The Rule of Necessity (*Qa'idah al-Idhtirar*); In accordance with the rule of necessity, that which is prohibited and forbidden in normal conditions becomes lawful (*Halal*) in emergency conditions (such as a problematic hermaphrodite) (p. 98).
Permissibility of Sex Reassignment for the Unproblematic Hermaphrodite and Critiquing the Opposing Viewpoint
Jurists do not hold a uniform viewpoint on the permissibility of sex reassignment for the unproblematic hermaphrodite; some consider it permissible and some consider it impermissible. According to the writers, to justify the permissibility of sex reassignment for the unproblematic hermaphrodite, the same evidence for the permissibility of sex reassignment for the problematic hermaphrodite has been relied upon (p. 102). Subsequently, the authors have stated seven reasons for the impermissibility of sex reassignment and responded to them; for example, it is stated that Yousef Madani Tabrizi has considered sex determination solely within God's authority, deems altering it impossible, and since sex never changes, its ruling does not change either. In critiquing this theory, the viewpoint of Mohammad Momen Qomi is presented, who believes that by performing this operation, the previous sex is no longer true of the person, and consequently, the former rulings do not apply to them, and the person will be subject to the rulings related to the new sex (pp. 103-104). The authors' expression in explaining some reasons and responses is not clear; for instance, it is stated: "Protecting human dignity is necessary because individuals' sexes are established vessels in human society"! (p. 104) and in the position of raising an overturning objection (*Ishkal Naqdhi*) to this argument, it is stated: "Every act of those obligated by religious duties (*Mukallafin*) that is contrary to the beliefs of the majority of human society must cause the destruction of human dignity; because you have only stated the issue of sex reassignment"! (p. 105).
Permissibility of Sex Reassignment for Transgender Individuals and Critiquing the Opposing Viewpoint
After quoting the fatwas of proponents and opponents of sex reassignment for transgender individuals (pp. 108-111), the authors have examined and critiqued nine reasons for the prohibition of this act. Some of them include:
- Impermissibility of altering divine creation; The writers have considered the most important reason for the prohibition of sex reassignment to be the prohibition of altering divine creation, which Verse 119 of Surah al-Nisa is said to indicate. However, they critique this reason and, by relying on the viewpoints of exegetes and jurists, apply the "creation" mentioned in the verse to "religion," considering the altering of religion as forbidden (pp. 111-118).
- Prevalence of homosexuality; Muhammad Hussein Fadlallah has considered sex reassignment for transgender individuals as a trick by homosexuals (p. 121). The writers consider this reason incomplete and do not view it as encompassing all cases (p. 122).
- Impermissibility of harming the body; Some jurists have considered sex reassignment to entail amputation and view it as necessitating forbidden harm. However, the authors believe that some sex reassignment surgeries are due to necessity, and in emergency conditions, prohibitions are lifted (p. 123).
- Impermissibility of men imitating women and vice versa; According to the authors, this reason is specific to the apparent alteration of individuals and does not encompass their actual alteration (p. 124).
The authors then state seven reasons for the permissibility of sex reassignment, and without rejecting them, they proceed to explain them, such as the lack of evidence for prohibition, the Hadith of Lifting (*Hadith al-Raf'*), the rule of dominion (*Qa'idah al-Taslit*), and the principle of validity (*Asalah al-Sihhah*) (pp. 129-134).
Non-Impediment to Inheritance
In the final chapter of the book, first the rulings on inheritance from the perspective of Islamic laws and monotheistic religions, as well as legal codes, are examined (pp. 145-166), then the inheritance of sex-reassigned individuals is analyzed. According to the authors, an individual who has reassigned their sex inherits from their father or mother, but their inheriting from their children is a matter of dispute. By quoting the viewpoint of some jurists, the authors consider their non-inheritance from their children to be incorrect; because neither in Islam nor in civil laws has sex reassignment been counted among the impediments to inheritance (pp. 168-169).
Continuation or Non-Continuation of the Marital Bond in Various Scenarios
In this book, the permissibility of sex reassignment for a husband or wife is conditioned upon the consent of their spouse; because if only the husband or wife reassigns their sex, this act leads to the violation of the spouse's rights as well as the dissolution (*Infasakh*) of the marriage contract (pp. 171-173). However, if one of the spouses reassigns their sex and transforms themselves into a hermaphrodite, or if both spouses simultaneously undertake sex reassignment, jurists do not hold a uniform viewpoint; some have issued a fatwa for the dissolution of the marriage contract, and some for the continuation of the marriage contract, and the authors explain the reason for each of these opinions (pp. 175-182).