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Fatwa ID: 21701
Title: The inheritance of a transsexual person
Category: Family and Personal Affairs
Scholar: AmjaOnline
Date: 05/06/2008


I was conducting research on transsexuality in Iran and I discovered that it is permissible to have a sex change in Tehran due to a fatwa issued. How does this affect inheritance laws?


The Fatwa of the Permanent Fatwa Committee of the Assembly of Muslim Jurists of America


All praise is due to Allah, and may peace and blessing be upon the Messenger of Allah. To proceed: A question concerning the inheritance of a transsexual person has been referred to the Committee, which issued the following response:


Transsexual people are of two types:

1) The first type: Those who were born intersex (in Arabic: khuntha), meaning that there was a congenital deformity in the reproductive organs, such that he had both male and female gonads, or that he lacked both. It is lawful for this type to seek medical treatment, through hormone replacement or surgery so that his condition can be fully corrected to either male or female. This is one of the treatments prescribed by Islamic law, and his situation is the same as any procedure to correct a congenital deformity in any other part of the body. His inheritance would be determined according to whatever gender he becomes after his condition has been corrected. The ruling for this type is clear and established in the fatawa of scholars, past and present. There is nothing complicated about it, and all praise is due to Allah.


2) The second type: Those who were born in complete male form, and then were transformed into a female via hormone replacement or surgery, or those who were born in complete female form, and then were transformed into a male via hormone replacement or surgery. Anyone who changes from a natural, completely formed male into a female does not actually become female. From a genetic standpoint, his makeup remains male, which is expressed in the xy genotype. He does not develop a uterus or ovaries, and he cannot get pregnant or have babies. The most that can be said on the matter is that he has removed his male reproductive organs and taken female hormones that changed his voice, the distribution of his body fat, and the like, so that he resembles a khuntha, not a female. Likewise, anyone who changes from a natural, completely formed female to a male does not actually become male. From a genetic standpoint, her makeup remains female, as expressed in the xx genotype. She does not develop true male reproductive organs, she cannot produce male spermatozoa and she cannot fertilize a woman's ovum. The most that can be said on the matter is that she has removed her female organs and taken male hormones that changed her voice, the distribution of her body fat, and the like, so that she resembles a khuntha, not a male. The transition of this category is a great crime: it is mutilation, changing the creation of Allah and imitation of the opposite sex—and those who do these things have been cursed by the Prophet (saws). This type is one of the modern catastrophes of this day and age, with the advancement of medicine and people of corrupt nature gaining unprecedented abilities. As such, this type of transsexual person would be treated in the rules of inheritance according to the original condition at birth prior to transition. Based on that, having sex reassignment therapy is a prohibited act according to Shari`ah, as explained above, and therefore, it is of no consideration in Islamic law.


The khuntha has only ever presented a problem to the scholars of inheritance law as a descendant (child, grandchild, etc.), collateral relative (sibling, aunt, uncle, etc.—neither ascendant nor descendant) and patronage. It is unimaginable that someone born a khuntha could be a father, mother, grandfather, grandmother, husband or wife, whereas among those transsexual people who transition later in life, there might be some who do so after becoming a father, mother, grandfather, grandmother, husband or wife, such as a father who had children and then transitioned to become female: how can we give him the inheritance of a female? Do we say that he is a father or a mother, since there would be two mothers in the case? Or someone who was a mother with children and then transitioned to become male: how can we give her the inheritance of a male when she is a mother? Can we have two fathers in one case? Likewise, someone who was a husband, who transitioned to become female, and then his wife died: how can the deceased be a woman and the heir a wife? Likewise, someone who was a wife, who transitioned to become male, and then her husband died: how can the deceased be a man and the heir a husband? That is why we rule that he/she inherits according to their original sex, in order to preserve the laws of inheritance in Shari`ah from manipulation, resulting in cases unlike any other in Islamic jurisprudence.


Sex reassignment therapy (SRT) in itself is a corrupt act that is in violation of Shari`ah, and it has no bearing on related verdicts (irrespective of whether or not the person who does this has been sinful in this respect or not). There is no difference between someone who had SRT before becoming Muslim or knowing about the prohibition and someone who had SRT after becoming Muslim and knowing about the prohibition, except in terms of the sin or lack thereof. As for inheritance, both of them would inherit according to their original sex before transition. If the male-to-female transsexual person poses temptation to men when looking at him or being alone with him, men are prohibited from that, even though we rule that he is male in the laws of inheritance. That is because the laws of covering and seclusion have another point of reference besides simply being male or female, that point of reference being avoidance of fitnah (temptation) and blocking the means to unlawful sexual activity. That is why scholars of fiqh have prohibited men from continually looking at a beardless youth if it is feared that he will be tempted by him. They have prohibited the effeminate (though anatomically predominantly male) mukhannath from walking with, talking with, being in seclusion with men and the like, in order to prevent fitnah (temptation) and to "block the means" [to immoral action], even though these restrictions do not prevent the beardless youth or the effeminate mukhannath from inheriting as a male. The case of transsexual people is the same.


And from Allah Most High comes all success.