Sexual Ethics in Islam (19 page)

This text definitively sees maleness as an impediment to marriage with another male, so much so that hermaphrodites are forbidden as marriage partners on the grounds that they might be male. (Note, of course, that this formulation assumes every individual has one true sex, even if ambiguous genitalia and secondary sex characteristics make it difficult or impossible

don’t ask, don’t tell 93

to determine.) Marking it as a text of its time, the text also rejects marriage between a man and a female spirit (
jinn
) or “a watery person.” Notably, while the gender of the
jinn
is specified as female – presumably, the prohibition against marriage to a male applies to the
jinn
as to the human – the prohibition of marriage to“a watery person” is gender-neutral. It is not the lack of gender fixity but “the difference of genus” that renders merpeople unsuitable as marriage partners, apparently.

In Muslim history, the relationship between sex, gender, and desire is far more complex than simplistic binary regulations would suggest. Rusmir Music, writing of “an essential ambigu- ity” within Muslim legal categories, argues that “Islam’s jurists repeatedly allow for exceptions, though they profess to be pre- serving immutable boundaries ordained by God.” While in some ways these ambiguities should open up space for a queer project, they do not function in the jurists’ works to create such a flexible system. Rather, “the uncertainties allowed by Islamic jurists, otherwise interested in neatly ordering all aspects of life, pre- dominantly serve to preserve a power hierarchy benefiting men.”
6
2
A brief discussion of classical legal treatment of her- maphrodites and the modern question of sex-change operations make clear both the room for accommodations in the Islamic sex/gender system and the limits to that ambiguity. While there is space for (temporary) ambiguity in the realm of sex – meaning biological determinations of maleness or femaleness assigned to a particular body – there is little tolerance for ambiguity in sexu- ality – that is, with whom a person of a particular sex may have sexual contact.
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The connection between bodily sex, socially ascribed gender, and sexual “orientation” is crucial.

Classical and medieval texts accept the existence of cases where assigning sex to a particular body, and therefore gender to a particular person, is not automatic. While a number of tests and tactics allowed for resolution of the question in most such cases, in the stubborn instance of the “problematic hermaphro- dite” (
khuntha mushkil
), the jurists failed in their attempts to assign gender to what Paula Sanders calls the “ungendered body.” In modern understandings, some jurists adopt a similar framework to justify sex-change operations as not correcting an

94 sexual ethics and islam

indeterminacy but rather realigning body with reality – in effect, uncovering the “real” or “true” sex of the person in question. Some progressive scholarship has viewed these operations as a watershed, but the acknowledgement of the existence of trans- sexuals is not more of a challenge to the standard jurisprudential discourse of sex/gender than that of the hermaphrodite in clas- sical and medieval discourses, nor is a person of ambiguous sex a challenge to the binary system once properly categorized.
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The danger from transgendered individuals is less about biological sex than about sexuality and its licit exercise.
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Some of those who objected to one Egyptian surgery, where Sayyid became Sally – and to her reclassification as a woman – did so on the grounds that the relevant factor was not that of Sally’s innate sense of gender but rather of sexual object choice. That is, it was not that Sayyid really was a woman, but that Sayyid wanted to have a woman’s body in order to be able (law- fully) to have sex with men.
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Specifically, she (or rather, he, because in the view of those who opposed the reclassification, there had been no change, only mutilation) “was fundamentally a
khawal
, that is, an effeminate man who is willing to play a pas- sive, female role in sexual intercourse with other men.”
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Returning to the subject of same-sex marriage, it becomes clear that the impermissibility of formalized same-sex relationships is only partially due to a prohibition on same-sex sexual activity. Same-sex marriage fundamentally challenges the basic structural premises of marriage as a contract. It is not just in the sex
act
that male and female are differentiated, but in the legal control over said act, in the legal right to claim it, in the legal right to form the relationship permitting it. I have shown that the boundaries of licit sex in Islamic jurisprudence – a man with his wife or his own female slave, both of whom are in some sense “owned” – require an exclusive dominion as a correlate of lawful sex. Male owners may have sex with female slaves but not (lawfully) with male slaves, and female owners may not have sexual access to their slaves of either sex. Men are the only ones permitted to be “owners” in this sense, and only women may be “owned.” Ultimately, Murad and Abdul-Ra’uf are correct: same- sex marriage represents a more fundamental challenge to norms

don’t ask, don’t tell 95

governing sexuality than does any type of illicit or clandestine union, precisely because viewing such a union as a
marriage
challenges the definition of licitness itself.

The legal structure of Islamic marriage is predicated on a gender-differentiated allocation of interdependent claims, which would be thrown into chaos by a same-sex union. In the standard contractual understanding of marriage, the husband holds
milk al-nikah
, control of the marriage tie, and the wife has a claim to dower and the obligation of sexual exclusivity and availability. Several early jurists considered the possibility of whether these rights and duties could be reallocated – whether a woman could pay a man a dower, for example, and retain con- trol over sex and divorce – and agreed unanimously that such a reallocation is not permitted. Not only are husbands’ and wives’ rights distinct, but each role is fundamentally linked to the sex/gender of the person exercising it. A woman cannot wield control of the marriage tie; a man cannot be contractually bound to sexual availability to his wife. Thus, following that logic, it would not be possible for one woman to adopt the “husband” role and the other to adopt the “wife” role in the marriage of two women. The self-contained logic of the jurisprudential framework does not permit such an outcome.
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Conclusion

Same-sex intimacy cannot be separated from discussion of other topics in sexual ethics because the rules making a same-sex marriage unthinkable emerge not primarily, or at least not exclusively, from an explicit prohibition of same-sex activity but rather through the legal construction of marriage and sexual relationships as both gendered and hierarchical. Many of the same things that would be necessary to make marriages more gender-egalitarian would be necessary precursors to any attempt to think about same-sex partnerships. Of course, this is one reason that some will argue that such attempts to reform marriage do in fact lead inexorably down a slippery slope to same-sex marriage. The measures necessary to reformulate the

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nexus of marriage in the direction of egalitarian and fully mutual relations between men and women do not remove ser- ious obstacles to the legitimization of same-sex acts, above all the notion that male and female are created to be mates for one another. However, if one sets aside macrocosmic issues, however compelling, and turns to ethical and legal reflection, one must ask whether there is some absolute standard on which same-sex intimacy can be compared to other forms of intimate partner- ship. Are consensual, exclusive, and long-term same-sex unions morally worse than slave concubinage, or serial marriage and remarriage? Are they worse than abusive marriages?
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The issue of consent in weighing the ethicalness of certain acts has rele- vance far beyond the issue of same-sex relationships. The com- ment made by “an American Muslim” on the Muslim WakeUp comment boards discusses sex outside of marriage. She does not expand her point to same-sex relationships, but others do. She is unable to understand how a consensual adult relationship between a man and a woman if committed to one another could be wrong, even outside of marriage, because she is operating under a fundamentally different logic of licitness than the medieval jurists. Indeed, the jurists saw a consensual relation- ship between two free men as significantly worse – and deserv- ing of
hadd
punishment for both parties – than a coerced relationship between a man and his male slave.
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Such sexual use was not lawful, but the master’s ownership sufficiently resem- bled his ownership of a female slave to give rise to a legal protec- tion. A recent news report described a Saudi man who has wed nearly five dozen women and girls in his lifetime (and divorced all but the last four).
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He has clearly acted in a legally valid, if reprehensible, manner. However, two men or two women who live together in a lifelong pseudo-marital union, remaining faithful, cannot be said to have acted lawfully according to jurisprudential rules – but have they done something unethical? Is lawfulness a prerequisite, if not a sufficient guarantor, of ethical behavior? Confronting same-sex sexual relationships and acts challenges us to define sexual lawfulness and ethical sex for all intimate partnerships, including those between men and women.

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“Reduce but do not destroy”: Female “Circumcision” in Islamic Sources

“I as Imam would like, with my colleagues, to turn to the Islamic world, particularly in Africa, and inform people that female genital mutilation is prohibited. It is a matter of abuse and violation of the female body and is quite clearly forbidden according to Islam.”

Swedish Muslim leader Sheikh Omar Ahmed, November 2003
1

“Circumcision is obligatory for every male and female. [For men,] it consists of cutting the foreskin of the glans of the penis, while female circumcision consists in cutting the clitoris and is called reduction.”
Reliance of the Traveller
, classic Shafi‘i legal manual
2

Who determines whether a particular practice is Islamic? Is it God, via the literal words of the Qur’an? The Prophet and, sec- ondarily, his Companions, as their statements and actions have been recorded in books of
hadith
? Should such determinations be based on the judgment of the religiously trained scholars, the ‘ulama, who interpret these sources in works of exegesis and jurisprudence? Or perhaps what is Islamic might be better identified with the actual practice of Muslims rather than any normative ideal. In that case, what happens when practices vary dramatically among Muslims, or when what Muslims do con- travenes the authoritative texts? When views have shifted over time, do earlier ideals or practices have more weight or does the contemporary state of affairs take precedence? Much of the con- fusion and imprecision in Muslim and non-Muslim discussions of controversial issues results from a lack of clarity about the scope of the claims made.

98 sexual ethics and islam

The two epigraphs to this chapter make seemingly con- tradictory claims about female genital cutting. The classical legal text calls it circumcision and pronounces it “obligatory,” while the contemporary
imam
calls it mutilation and declares it “forbidden.” This chapter will explore why these divergent views exist, how they are expressed, and why they matter for the majority of Muslims who are from regions where female genital cutting, or FGC, is not practiced. I tackle this subject with some trepidation, as I am not an expert either on FGC or on those regions of the Muslim world where forms of excision are most frequently practiced. Given the history of resistance and legit- imate resentment surrounding Western intervention on this issue, I want to make clear that, while I ardently support the ultimate eradication of all forms of female genital cutting on a variety of grounds, I am not attempting to set myself up as an authority as to how reform should best be achieved; women and their male allies from regions where FGC is practiced must be at the forefront of any movement for change.
3
I have chosen to address the topic here as a case study of how religious sources and authority are marshaled and manipulated, and to illustrate how the demands of scholarship and advocacy can clash.

Although undoubtedly well meant, Shaikh Omar Ahmed’s claim to present the definitive Islamic view on what he terms “female genital mutilation” fits into patterns of modern legal authoritarianism, as described by Abou El Fadl. It also dovetails with an apologetic discourse that pervades much Muslim English-language discussion of the subject. This stance results in, among other things, misleading translations of key terms and passages from legal and hadith texts even in otherwise scholarly works. The evasion and misdirection surrounding the textual basis for acceptance or rejection of female genital cutting is due to desire to combat negative stereotypes of Muslims as well as to abolish the practice itself. At stake is who has the right to decide what counts as normative for Muslims, and what authority, if any, the determinations of the classical jurists, who treated female circumcision approvingly, should have today.

There are solid reasons for Muslims to reject female genital cutting without making grandiose claims about its

“reduce but do not destroy” 99

“un-Islamic” nature, but such an approach requires a willingness to treat not only jurisprudence but also
sunnah
and hadith as products of their time, with limited currency as formal rules for contemporary application. Thorough and honest discussions of controversial practices such as female genital cutting must move beyond simplistic binaries of “Islamic” and “un-Islamic” or lawful/prohibited toa more complex scheme of ethical and moral valuation. Engaging with the complexities of the tradition is worthwhile in issues of sexual ethics far beyond the matter of excision. Nonetheless, although it is all well and good to proclaim the need for greater sophistication in methodological approaches to understanding the relationship between religious and custom- ary practices, for those concerned with practical reforms, sweeping claims about “Islam” ’s forbidding of female genital mutilation (FGM) may be more effective than detailed investiga- tion of the layered jurisprudential treatment of the subject.