Ontological vs. Categorical Sex Difference in Classical Shāfi‘ī jurisprudence: the Case of the Khunthā (Intersex)

This paper examines classical Shāfi‘ī opinions regarding the khunthā as represented in Abū Ibrāhīm Ismā‘īl bin Yaḥyā al-Muzanī’s Mukhtaṣar of al-Shāfi‘ī’s  al-Umm (Dar al-Sha‘b, 1968, 6 vols.) and contextualizes them within a history of legal discussions of non-binary bodies. While al-Shāfi‘ī (d. 820) and al-Muzanī (d. 877) prepared legal arguments that recognized a legal category that straddled the gender binary between male and female, they did not employ this legal category as if it represented an ontological difference from male or female. They recognized the khunthā as a person whose genital variations made them difficult to categorize legally as male or female but did not confront the idea—as did some lexicographers and literati of the same time period, notably al-Jāḥiẓ (d. 868)—that God created beings who were neither male nor female but somewhere in between. The scholarly discourse thus far on the khunthā has focused on a relatively small body of works, most of which derive from the Ḥanafī madhhab, and on issues of gender assignment, inheritance, dress, prayer, circumcision, manumission, marriage, funerals, and burial. This paper extends the discussion to include diya, compensation for death and injury. It also helps to move the discussion beyond the positions laid out by Paula Sanders in “Gendering the Ungendered Body” (1991), Saqer Almarri in "You Have Made Her a Man among Men" (2016), and Indira Gesink in “Intersex Bodies in Premodern Islamic Discourse” (2018), in which the former two argue that non-binary bodies had to be assigned either male or female, and the latter argues that many jurists in fact tolerated and accommodated ambiguous bodies. This paper argues that jurists produced a discourse that warred with itself internally, both accommodating and denying the reality of the non-binary body, as they struggled with categorical legal sex differences that denied the ontological framework of binary creation they used to interpret Qur’an. The presenter further contends that the conceptual disconnect between the ontological status and the categorical status of the khunthā persisted throughout subsequent Sunni discussions of the topic. The argument explains how both jurists deployed the concept of juristic certainty to evade the question of whether a third form of created being could exist. Juristic rulings on diya typically provided a value for an injured body part (leg, ear, etc.) that would be paid to the injured party by the offender's family or interest group, in lieu of the right of retaliation. When ruling on the compensation value of injured khunthā body parts, the jurists considered first whether a particular body part would be valued more highly in a male or female (breasts and eyelashes are more valuable in females; phalluses are more valuable in males). Then they would rule that the khunthā be awarded at least the smallest value, either the male or female value, for the part. This ruling had the benefit of being certain, for the khunthā was at least male or female--they were not inhuman or monstrous. Later jurists would elaborate on this theme, developing schemes for holding the difference between the larger and smaller values in trust, so that if the khunthā matured in such a way as to be owed the larger of the two values, the amount could be paid out of the trust. If the khunthā matured in such a way that the lesser amount proved to be the right payment, the remainder could be given back to the payer. This would be further developed for use in inheritance as well. Thus by privileging certainty, these jurists were able to evade confronting the difference between the lived reality of non-binary embodiments and the Qur'anic ideal of binary sex.