Khunthā as a Third Ontological Category: Rethinking Intersexuality in Classical Māliki and Shiʿi Legal Discourses

In this paper, I present a novel analysis of khunthās (intersex individuals) as a third ontological category in certain classical Māliki and Shiʿi legal discourses. In classical Islamic thought, khunthā referred to individuals with both male and female physical traits, a classification that extended beyond biology to legal, social, and cultural domains. The conceptualisation of khunthā reflects the complex ways in which classical Muslim scholars navigated bodily ambiguity in their theological and legal writings.

While substantial scholarship has examined Islamic doctrines and cultural traditions concerning effeminacy, transgenderism, and homosexuality, the topic of intersexuality in Islamic legal and Muslim cultural contexts remains underexplored. This is particularly striking given the public visibility and polemical debates surrounding intersex issues in contemporary Muslim societies. This gap underscores the need for comprehensive analyses situating khunthā within broader discourses on sex, gender, and bodily ambiguity in Islamic thought.

Meanwhile, traditional Muslim scholars and public preachers today often advocate rigid interpretations of Islamic teachings on gender and sexuality, portraying Islam as inherently intolerant of transgenderism or non-binary identities (Navigating Differences: Clarifying Sexual and Gender Ethics in Islam 2023: link; al-Haj 2007; The Muslim World League 1989; Qiṭāʿ al-Iftā 1996; Assim al Hakeem: link; Yasir Qadhi: link; Amer Jamil: link). This perspective reinforces orientalist narratives that depict Islamic teachings as rigid and monolithic, overlooking historical complexities within Islamic legal and theological discourse (Sanders 1991; Najmabadi 2014). Such narratives fail to account for the dynamic ways in which Islamic scholars historically approached issues of sex and gender, including nuanced discussions on khunthā. This is because it has predominantly focused on a narrow set of legal texts, particularly within the Ḥanafī legal tradition, such as the Kitāb al-mabsūṭ of the Ḥanafī jurist Muḥammad Ibn Aḥmad al-Sarakhsī (d. 483/1090), contributing to a limited understanding of the khunthā’s status in classical Islamic societies. Despite this limitation, this approach to khunthā in Islamic law has heavily influenced the field and has been endorsed by various scholars over the past three decades. 

However, historical Muslim discourses on sex and gender were more dynamic and complex than rigid interpretations suggest. Some scholars argued that the recognition of khunthā as a non-binary legal or social category is significant, as classical jurists acknowledged bodily ambiguity (Gesink 2018, 2021; Geissinger 2012). While these scholars have shown that intersex individuals were sometimes perceived as a non-binary legal or social category in certain Muslim contexts, there are hardly any studies demonstrating that scholars within the Muslim tradition recognised intersex individuals as an ontological third category of human beings. This paper seeks to address this gap.

I will show that while the biological ambiguities of the khunthā troubled classical jurists and judges lived before the 11th century, they did not seem to have been concerned about whether khunthās, particularly those who are identified as khunthā mushkil (a person whose sex cannot be determined via medical or devotional signs), belong to a third category of human beings—neither male nor female. Post-11th century jurists, however, raised the question of whether khunthā mushkils belonged to a third category of humanity. They noted that the dominant legal position, according to which the khunthā mushkil inherits an amount different from both males and females—that is, half of the male and half of the female inheritance share—implies that khunthās are neither male nor female. Otherwise, they would have received the share of either a male or a female. They then argue that a khunthā mushkil cannot be both male and female because males and females are two different categories of humanity that cannot exist in one person. Therefore, scholars holding the dominant position have no choice but to conclude that a khunthā mushkil belongs to a third category. If so, they remark, this conclusion goes against Islamic scriptural teaching, particularly verses of the Qurʾān such as Q. 4:1, Q. 42:49, Q. 75:39, and Q. 92:3.

While many jurists seem to have accepted the male/female binary at face value, believing that the Qurʾān is clear on this matter and leaves no room for alternative interpretations—as, for example, suggested by al-Nawawī (d. 676/1277)’s assertion that “a khunthā mushkil is either a man or a woman, and not a third category (qism)”—this position has been challenged by several classical Shiʿi and Māliki jurists, spanning a period from the 11th to the 16th centuries.

Adopting historical, textual, and legal-hermeneutical approaches, I examine several classical Māliki and Shiʿi legal texts from this time period, relating to the following scholars: [in the Māliki school] Abū Bakr Ibn al-ʿArabī (d. 543/1148–49), Muḥammad b. Sulaymān al-Saṭṭī (d. 750/1349–50), al-ʿUqbānī al-Tilmisānī (d. 811/1408–9), Shams al-Dīn Muḥammad al-Ḥaṭṭāb al-Ruʿaynī (d. 954/1547), and Zayn al-Dīn b. Ibrāhīm Ibn Nujaym (d. 970/1563); and [in the Shiʿi school] al-Qāḍī Ibn al-Barrāj (d. 481/1088), Ibn Idrīs al-Ḥillī (d. 598/1202), Shams al-Dīn Muḥammad b. Makkī al-ʿĀmilī (known as al-Shahīd al-Awwal, d. 786/1384), al-Suyūrī al-Ḥillī (known as al-Fāḍil al-Miqdād, d. 826/1422–23), and Zayn al-Dīn al-Jubaʿī al-ʿĀmilī (known as al-Shahīd al-Thānī, d. 965/1557–58).

Through a close reading and legal-hermeneutical analysis of these jurists’ texts, I argue that they challenged the binary interpretation of the aforementioned Qurʾānic verses, advocating for an alternative exegesis that accommodates a non-binary discourse on human beings. Thus, in their legal practice, they sought to uncover the actual nature of intersex individuals, exploring whether they were male, female, or a distinct third category. I demonstrate that a significant group of these jurists recognised intersex individuals as an ontological category beyond the male-female binary.

By rejecting a rigidly binary concept of sex/gender, these jurists created space for intersex individuals to navigate their lives outside the male-female dichotomy. To highlight the implications of this approach, I contrast the non-binary legal perspective with binary interpretations in Islamic legal cases concerning public and private matters, including marriage, clothing, inheritance, and prayer. This analysis reveals the differing legal rights and responsibilities assigned to khunthās, offering a historical foundation for contemporary Muslim intersex individuals to advocate for their civil rights within their respective societies.