Previously, jurists looked at the mukhannath through the lens of either being a fāsiq due to their propensity to sodomy, or simply being a man, and so rulings were based solely on those premises. As for the intersex, then their opinions diverged greatly, based on being cautious and conservative on one hand, as well as realizing certain maṣāliḥ and ijtihad with istiḥsān—all tools we will use inshaAllah. It is my personal belief that Islam holds that the transgendered must be patient with what Allah has tested them with. However, if they choose not to, and are sinful for that, then there other rulings that pertain to them either way, just as how Allah gave specific rulings for the drunken not to pray until they are sober, and rulings for the guardians for children to pay zakat on their behalf. These rulings exist in spite of their complex state of accountability.

Also, considering that some fuqaha may suggest or imply the permissibility of SRS surgery, then if the transgendered feels their life and success is impaired and halted until their transition is complete and that they are burdened beyond their capacity until they live life among women, desiring a heterosexual relationship, for example, like the rest of women, and gravely afraid of falling into sin if they mix with men only, then they should visit a trusted expert psychologist to rule out other issues, and then if recommended for surgery, they may do so if they are not being pressured into it, and have fulfilled its necessary requirements. And Allah knows best. This researcher does not agree with that except for the intersex, but because some previous fatawa on the subject have been ambiguous, and it has been performed in Saudi Arabia, it seems an opening exists among Sunni jurists, but based off of differing interpretations of various fatawa. And that would be by considering the transgendered as a type of intersex.        

There are issues that have no bearing here, such as issues of menstruation and post-partum bleeding, likewise issues concerning children, like how the Prophet ﷺ differentiated between the cleaning of a boy’s urine vs a girl’s, since that is before their feelings are expressible and also since transgenderism should not really be confirmed or taken seriously—only monitored—until puberty and it is either cemented or it vanishes. As for issues where the benefit and justification appears physical, then both the transgendered and transsexual may be equal, but if social and related to who to stand with, the transitioning one departs from the merely transgendered. For example, if there is a call to arms, the one who still lives as a man should join the men to defend the lives of the people, but as for the one who is transitioning as a woman, their presence among the men would be a great fitnah and they should stay with the women. In the seerah, Hassaan ibn Thaabit stayed with the women in a fortress during the battle of Ahzab due to his nature. 

Likewise, with the prayers, the one who is transitioning and appears as a woman should stand with the women, otherwise, no. As for the responsibility of attending the congregation when the call to prayer is heard or attending the Friday prayer, the conservative opinion is that they should attend those prayers if no fitnah is feared and they haven’t transitioned. Issues that could allow the mukhannath to be in the presence of women, seeing them, are typically allowed as the ulama mostly permitted [ibn Qudaamah, al-Mughni, 7/104].

قال ابن القدامة “فَصْلٌ: وَمَنْ ذَهَبَتْ شَهْوَتُهُ مِنْ الرِّجَالِ، لِكِبَرٍ، أَوْ عُنَّةٍ، أَوْ مَرَضٍ لَا يُرْجَى بُرْؤُهُ، أَوْ الْخَصِيُّ، أَوْ الشَّيْخُ، أَوْ الْمُخَنَّثُ الَّذِي لَا شَهْوَةَ لَهُ، فَحُكْمُهُ حُكْمُ ذِي الْمَحْرَمِ فِي النَّظَرِ لِقَوْلِ اللَّهِ تَعَالَى: {أَوِ التَّابِعِينَ غَيْرِ أُولِي الإِرْبَةِ مِنَ الرِّجَالِ} [النور: 31] أَيْ: غَيْرِ أُولِي الْحَاجَةِ إلَى النِّسَاءِ قَالَ ابْنُ عَبَّاسٍ: هُوَ الَّذِي لَا تَسْتَحِي مِنْهُ النِّسَاءُ وَعَنْهُ: هُوَ الْمُخَنَّثُ الَّذِي لَا يَقُومُ زُبُّهُ وَعَنْ مُجَاهِدٍ وَقَتَادَةَ الَّذِي لَا أَرَبَ لَهُ فِي النِّسَاءِ فَإِنْ كَانَ الْمُخَنَّثُ ذَا شَهْوَةٍ وَيَعْرِفُ أَمْرَ النِّسَاءِ، فَحُكْمُهُ حُكْمُ غَيْرِهِ.

Marriage

Nearly all transwomen, like archetypal women, will be sexually oriented towards men. This means, unless they receive gender reassignment surgery, their preferred sexual expression will be being penetrated, nowhere but the anus unless and until they receive surgery. Sexual insertion of a penis into a male anus is forbidden by consensus of the scholars of Islam. They disagreed over the reason it was prohibited as well as the punishment for committing it. As for punishment, in brief, the Malikis required stoning for the perpetrator, married or not. The Shafi`is and Hanbalis considered it analogous to fornication, and that the married one should be stoned while the yet-to-marry is lashed 100 times and imprisoned or exiled for one year. The Hanafis and Zahiris considered it subject to discretionary punishment ta’zīr for the ruler to define. In all cases, of course, such punishment is considered the responsibility of the executive branch of government, so if not applied, then Muslims under their jurisdiction cannot “take the Law into their own hands”.

Because male-male anal sex is forbidden by scholarly consensus and considered a major sin, same sex marriages are no different than mutual agreements to sin together and oppress each other. But if a transgender undergoes complete transformation, and is recognized by ruling as a female, sinful or not to get to that step, and they fear fitnah for themselves and the community of men, then they should marry a heterosexual man.^[1]Otherwise, if a transgender has no desire women and does not wish to transition, some of them have found understanding lesbian women to marry in a “sham marriage” to please their respective … Continue reading

In the case of divorce, the transwoman’s `iddah waiting period is that of the non-menstruating woman: three months (Quran 65:4).       

Is being a transwoman considered a marital `aib defect that could render the marriage valid?

قال ابن قدامة بعد تعدادها مبيّناً العلل، “وَإِنَّمَا اخْتَصَّ الْفَسْخُ بِهَذِهِ الْعُيُوبِ؛ لِأَنَّهَا تَمْنَعُ الِاسْتِمْتَاعَ الْمَقْصُودَ بِالنِّكَاحِ، فَإِنَّ الْجُذَامَ وَالْبَرَصَ يُثِيرَانِ نَفْرَةً فِي النَّفْس تَمْنَعُ قُرْبَانَهُ، وَيُخْشَى تَعَدِّيهِ إلَى النَّفْسِ وَالنَّسْلِ، فَيَمْنَعُ الِاسْتِمْتَاعَ. وَالْجُنُونُ يُثِيرُ نَفْرَةً وَيُخْشَى ضَرَرُهُ. وَالْجَبُّ وَالرَّتْقُ يَتَعَذَّرُ مَعَهُ الْوَطْءُ. وَالْفَتْقُ يَمْنَعُ لَذَّةَ الْوَطْءِ وَفَائِدَتَهُ، وَكَذَلِكَ الْعَفَلُ، عَلَى قَوْلِ مَنْ فَسَّرَهُ بِالرَّغْوَةِ.”

Ibn Qudaamah (al-Mughni, 7/185) along with traditional scholars restricted defects to that which prevents sexual enjoyment, like a severed penis or blocked vagina, or repulses the other spouse, like white-patches or whatever one fears may touch them or future progeny. Men who’ve experienced both transwomen and other woman state that penetration with transwomen is just as pleasurable, so that’s not an issue.

One thing about a transwoman that is important before embarking upon marriage is clarifying to the suitor, that they are a transwoman, and that they are never capable of naturally bearing children, as the Prophet obligated in contracts, and based on the scholars’ justification for cursing those who put spaces between their teeth, so there’s no deception, and that the man does not find out a year or so later, is disgusted and turns away for having been deceived. Otherwise, if this is discovered, the spouse may seek that a judge dissolve their marriage.

Strangely however, in traditional fiqh, scholars did not list infertility as a defect. This is likely because the science was not pinned down yet. And some modern scholars followed them, claiming that discovered infertility is not sufficient grounds to seek the annulment of a marriage. Shaykh Muhammad ibn Saalih al-Uthaymeen (al-Sharh al-Mumti’, 12/220) however disagreed, saying, “…that was the opinion of the jurists, may Allah have mercy upon them. But that is problematic. The correct position is that a defect is whatever makes the purpose or goal of marriage lost. And there is no doubt that intercourse, service, and children are all from the goals of marriage. So whenever a woman finds her husband infertile, or he finds her infertile, then it is a [worthy] defect.” 

Some modern traditionalist scholars attempting to prevent the transgendered from any and all good have gone to another extreme claiming that the main purpose of marriage is to bear children, and that all other benefits are secondary, so if the primary benefit is disabled, then the other benefits are not considered. But this is absolutely baseless, as the scholars of Islam have united in consensus that it is allowed to marry and be married to a menopausal woman who cannot be impregnated. Rather, the early scholars understood that the main purpose of marriage is halal intercourse. The Prophet ﷺ didn’t disagree when he said,

“ أَحَقُّ الشُّرُوطِ أَنْ تُوفُوا بِهِ مَا اسْتَحْلَلْتُمْ بِهِ الْفُرُوجَ”

“The conditions with the most right to be fulfilled are those by which private parts are permitted” [al-Bukhari, kitab al-shuroot, no. 2533] and he did not say “those which allow children to be conceived/brought into the world and raised”.

Undoubtedly, the greater meanings of marriage include providing affectionate romantic comfort for each other, since each are a garment for the other, as Allah describes. That meaning isn’t lost with this kind of marriage. If however we forced that transgender to marry a woman, considering that the trans never felt like a man their entire life, then this would be oppression to that woman.

This marriage, like any other, is a preservation of faith, since marriage itself is half of faith, allowing those involved to focus on the other parts of their faith. Then the percentage of depression, suicide and prostitution and STDs will drop among them dramatically, and Islam will be a welcoming religion for them unlike other groups who cling to old science and reject the new. And it’s rare that the transwoman would be able to support herself, or support a family in this age, so she needs a man for that.

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As for the harms of allowing such a marriage, whether by the Sharia or otherwise, then generally because it hinges on recognizing the surgical procedures as turning the person into a woman, by ruling. Whatever is built on the forbidden is likewise forbidden, and there is no concession due to a sin. However, those principles are not agreed on, but rather they are saying of some teachers but have little basis and use from the Salaf. Allah “made concession” to the drunkard to delay the prayer directly because of their drunkenness. The child of zina is not denied rights as a human merely because their existence was born of the sin of others.

Imam al-Shatibi (d. 790 ah) spoke of this sort of thing in al-Muwafaqat [5/108] ]when he said, “the evidence for an issue could require prohibition initially, and that would be the weightiest opinion, but after the issue actually was committed, then that stronger opinion became the weakest [and discarded] because of another evidence that came and required the considering the evidence [and position] of the other party, so pronouncing the opinion of one would be in a separate manner than the other position. In one case is after the incident took place, and the other is before. So they are two different issues. And they are not contradictory, nor are they claiming the validity of two opinions at once.” For example, if someone started an action that they believe was forbidden for them, so they ask a shaykh who then responds by saying, “well, it was haram for you to start this, but now that you’ve done it, this other shaykh lists several guidelines you must follow in order to do it properly.” In order to pass through with least blame. And al-Shatibi further stated, “not all things initially forbidden remain unrecognized after their occurrence.” This is an except to the well known maxim, prohibition necessitates spoilage (النهي يقتضي الفساد). 

        فصّل الشاطبي في معناه “بِأَنْ يَكُونَ دَلِيلُ الْمَسْأَلَةِ يَقْتَضِي الْمَنْعَ ابْتِدَاءً، وَيَكُونُ هُوَ الرَّاجِحَ، ثُمَّ بَعْدَ الْوُقُوعِ يَصِيرُ الرَّاجِحُ مَرْجُوحًا لِمُعَارَضَةِ دَلِيلٍ آخَرَ يَقْتَضِي رُجْحَانَ دَلِيلِ الْمُخَالِفِ؛ فَيَكُونُ الْقَوْلُ بِأَحَدِهِمَا فِي غَيْرِ الْوَجْهِ الَّذِي يَقُولُ فِيهِ بِالْقَوْلِ الْآخَرِ؛ فَالْأَوَّلُ فِيمَا بَعْدَ الْوُقُوعِ، وَالْآخَرُ فِيمَا قَبْلَهُ، وَهُمَا مَسْأَلَتَانِ مُخْتَلِفَتَانِ؛ فَلَيْسَ جَمْعًا بَيْنَ مُتَنَافِيَيْنِ وَلَا قَوْلًا بِهِمَا مَعًا.”   ذكر الشاطبي “لَيْسَ كُلُّ مَنْهِيٍّ عَنْهُ ابْتِدَاءً غَيْرُ مُعْتَبَرٍ بَعْدَ وُقُوعِهِ.”  

Critics say that by allowing such a marriage would lead to a decrease in the number of child-bearing Muslim families, and that the ummah would decrease severely and become extinct. That might be the case if all Muslims were forced to marry only a person of their same gender but such a proposition is absurd, and likewise those arguments which overestimate the number of transgendered in the ummah. Transgenderism and transsexualism are not contagious.

Other critics say that this is a type of same-sex marriage. However, if the operation has been done successfully, then they have been, according to the expression of some fuqaha, returned to their true gender, and that their first outer parts were just a harm to them. Such individuals want to use their new fabricated genitalia for traditional intercourse, and not engage in sodomy or other forbidden acts.

One almost certain negative aspect of permitting transsexual marriage is furthering the rumor mill, and subjecting one’s self and family to being the subject of immense gossip among other family members, the Muslim community and perhaps beyond. However, if it is the only way of saving one’s self from greater fitnah, then one has to not worry about the sins of others. Some imams who sanction and perform these marriages call upon the family members, no matter where they are in the world, to sit down and discuss the issues so that there is support, even if they cannot relate or understand the science.

Another possible reason to forbid transsexual marriages may be what is perceived as defeatism in front of western liberal ideology at a time that Muslims should show the definitiveness of their religion and how distinct it is. This is another aspect of ḥifẓ al-dīn.

Finally, it may be claimed that by allowing this, it would open a flood gate of people opting for SRS surgery, which is haram, and lead to wasting of money better served elsewhere. However, this is doubtful, since homosexuals, for example, are not transgendered, and would not want that surgery anyway nor pass the necessary psychological evaluations preceding it. The transgendered are a very small part of the population.

As for saying it leads people to do the haram to get to what is permissible after committing the haram, then that is possible. It is not too far from saying people could get drunk to delay the prayers or that they could castrate themselves to hang out with women [whom they would no longer desire after the castration!]. And it is unlikely that this will become an epidemic, in spite of some stories being sensationalized and going viral, making it seem more than it is. Also, we only judge by what is apparent, while leaving intentions to Allah. In any case, Islam did not come to completely prevent people from ever sinning—that’s why adultery requires four witnesses, not three or two or one—but give people time to think about these things and ultimately Allah will know their intentions. The pious will be patient and the impatient may forever live the consequences of a sin they may end up deeply regretting. Since SRS is still a relatively new phenomenon, it may be a few decades before more conclusive patterns are established among psychologists.       

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Most of the meanings of marriage, and its goals are preserved by acknowledging a union between transwomen and men, so I see no reason to forbid it once a person has made themselves a passable woman. I see that as being the best way for them to integrate into society and lead a normal life. Otherwise, for the transgendered to religiously congregate among themselves in third spaces, as was done during the Prophet’s time since no other options were available. For those who opt to transition and undergo surgery, and marriage, I also believe they should be monitored with occasional follow-up surveys to understand their progress to better serve others in the future. And Allah knows best.

May a Transsexual Carry a Fertilized Egg, Embryo and Fetus until Birth?

Hormone therapy can leave irreversible damage to the reproductive system, while SRS generally blocks it off forever. The only remaining option for transwomen is to cryo-freeze their sperm in a sperm bank beforehand (and cryopreservation of ovaries for transmen).

A transwoman could theoretically receive a womb transplant. While the sperm could be her own or her husband’s, there is yet to be created a synthetic egg. The egg would have to come from an outside donor (e.g. the transwoman’s biological sister, cousin, etcetera), and this would mean that the baby carried a large portion of outsider’s genetics. Nearly all contemporary scholars forbid surrogacy of the resulting mixture of parentage, from outside the married couple raising and claiming the child.

Could it be allowed if the egg came from the transwoman’s biological mother, since the lineage would not be altered, hardly on paper nor genetically?

It is completely forbidden for a man to ever marry or have intercourse with the mother of anyone he ever married—consummated or not—the reason `illah is unclear. Technically, the man and the mother have a permanent bond, allowing them to mix freely with each other and even be alone together, nothing more, but that concession is given as soon as the marital contract sitting ends. Unlike the step-daughter or any other woman related to the bride, marriage and intercourse only become permanently forbidden if the man consummated the marriage. A step-daughter of a man whose original mother was someone other than her biological father who is now a transwoman, would contain genes of an outside woman.

If the Sharia allowed this, it would only be with the egg from the transwoman’s mother, since it is allowed in Islam for a person to refer to their grandparent in the position of their parents, just as the Prophet Muhammad ﷺ said he was the son of Abdul-Muttalib, his grandfather. Perhaps, although less likely because of lineage interception, the full sister, would be allowed to donate an egg as well. Her genes would resemble the transwoman’s genes due to their shared parentage, and Allah knows best.

As for transmen who would marry women, what if the sperm was donated from the transman’s father or brother, to the woman to carry and deliver? Allah knows best.

If they receive a womb transplant, and carry and give birth, and bleed, then in that case, the rulings of post-partum bleeding may apply to them if the cause of bleeding for them is like the cause of bleeding for reproductively congruent women.

As some scientists have confirmed the ability to create an egg from the cells of male skin, then this may be allowed, along with what was mentioned before, of transplanting a uterus, as long as the sperm comes from the husband to prevent the mixing of heritage and genetics and outside parentage.

What if a Transwoman breastfeeds someone else’s child?

Men can lactate and breastfeed, not only humans but of other mammals, so nothing then could stop transwomen from doing the same.

While the anatomy of male and female breasts and nipples differ slightly, the equipment for milk production is present in both. It’s well known that even some newborn baby boys and baby girls may secrete milk from their nipples shortly after birth, colloquially called “witch’s milk”. Afterwards is a little different. One expert explains, “[T]he difference is a matter of hormonal influence, first during puberty and then again after pregnancy.” So how then could lactation come about? “[G]enerally, you need to introduce both estrogen and prolactin into the system, often by injection. Some drugs, like Thorazine—an antipsychotic popular in the mid-20th century—and the heart medication digoxin have induced milk from men as a side effect.” Severe prolonged hunger could also lead indirectly to male lactation. “When a person is malnourished, the hormone-producing glands—like the pituitary gland, which generates prolactin—are impeded, but so too is the hormone-destroying liver. If proper nourishment is later provided, the glands recover much more quickly than the liver, causing hormone levels to skyrocket. It’s also possible that something [like a tumor] could target the pituitary gland and cause it to produce more prolactin.” And, “There’s also a camp within the scientific community that thinks men can lactate merely through nipple stimulation,” just as some adopting women have done, with examples of men in similar situations to back it up. “When a baby (or a non-baby) sucks on a nipple, the movement activates mechanoreceptors that connect to the brain and stimulate the pituitary gland.” Curiously, although less plausible, examples of men breastfeeding have been documented in literature, from the Talmud to Tolstoy.

And an Islamic maxim which is attributed to the Prophet ﷺ or to Aaishah, is that in terms of mixing and marrying suckling a child is like being a mother to the child, and therefore if other children suckled from the same woman, they are like the brothers and sisters of one another, even if they were conceived by totally different couples. The jurists debated whether that same relationship is created when a man or intersex nurses a baby, does the baby become a “milk-sibling” to others likewise nursed by the same man or intersex? The vast majority of scholars said no, as ibn Qudaama stated in al-Mughni (8/179-180).

وقال ابن قدامة “فَلَوْ ارْتَضَعَ اثْنَانِ…مِنْ رَجُلٍ، لَمْ يَصِيرَا أَخَوَيْنِ، وَلَمْ تَنْتَشِرْ الْحُرْمَةُ بَيْنَهُ وَبَيْنَهُمَا، فِي قَوْل عَامَّتِهِمْ. وَقَالَ الْكَرَابِيسِيُّ: يَتَعَلَّقُ بِهِ التَّحْرِيمُ؛ لِأَنَّهُ لَبَنُ آدَمِيٍّ، أَشْبَهَ لَبَنَ الْآدَمِيَّةِ. وَحُكِيَ عَنْ بَعْضِ السَّلَفِ، أَنَّهُمَا إذَا ارْتَضَعَا مِنْ لَبَنِ بَهِيمَةٍ، صَارَا أَخَوَيْنِ. وَلَيْسَ بِصَحِيحِ؛ لِأَنَّ هَذَا لَا يَتَعَلَّقُ بِهِ تَحْرِيمُ الْأُمُومَةِ، فَلَا يَثْبُتُ بِهِ تَحْرِيمُ الْأُخُوَّةِ، لِأَنَّ الْأُخُوَّةَ فَرْعٌ عَلَى الْأُمُومَةِ، وَكَذَلِكَ لَا يَتَعَلَّقُ بِهِ تَحْرِيمُ الْأُبُوَّةِ لِذَلِكَ، وَلِأَنَّ هَذَا اللَّبَنَ لَمْ يُخْلَقْ لِغِذَاءِ الْمَوْلُودِ، فَلَمْ يَتَعَلَّقْ بِهِ التَّحْرِيمُ، كَسَائِرِ الطَّعَامِ.”

The small minority who believed that the forbiddance of marriage is affirmed between children nursed by one man believed that the illah for the ruling was that the children were nursed by a human. Ibn Qudaama on the other hand, siding with the vast majorities believed the illah to be motherhood, because a man’s milk was not created naturally for the provision of children. Yet a transitioned who carried a child definitely possesses both humanity and motherhood—even if milk did not begin flowing naturally without taking hormonal supplements. Nonetheless, the conservative opinion would be to prevent mixing between such children, just in case Allah does not view that suckling as preventative, and to prevent marriage between such children, just in case Allah does view that suckling as preventative. I personally don’t see any discrepancy since the Prophet’s words, and Aaishah’s words were that the illah is nothing more than nursing, man or woman, as long as they’re human.

As for what some of the Salaf said, that if two unrelated children drank from the same animal’s milk, then the relation is confirmed, then this is shaadh and unacceptable. Imagine if a family had a cow, camel or sheep whose milk they sold to the town’s people over several years. Then all the town would be allowed to mix with each other and forbidden from marrying each other! 

Inheritance and other Juridical Issues, like Testimony, Appointments and Blood Money

It seems, and Allah knows best, if a transgendered has not begun any transition with an acquainted Muslim psychologist’s permission and record, then their portion is that of men. If they have received surgery and transitioned completely, then they deserve the portion of a woman. If they are pre-operation but have transitioned publicly, then the portion of an intersex due to their “in-between” stage with respect to many other rulings. Similar rulings concern the value of their testimony—full male or half, and whether they can be appointed to “male/female exclusive” positions, and the amount of blood money due their family if one is killed. And Allah knows best.

Final page: summary of conclusions