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 to recognize an ontological being other than male or female. They recognized the khunthā as a person whose genital variations made them difficult to categorize legally as male or female but employed the juristic concept of certainty to evade the difference between the social reality of non-binary bodies and Qur'an texts that spoke only of male and female created beings.