Sexuality: male, female, third gender
The classical Islamic fiqh literature is predominantly based on the concept of two genders (male and female) and their rights and duties. Both have a right to sexual satisfaction, which, in contrast to Christian marriages, is not exclusively connected to procreative purposes but also to enjoyment of sex as such.14 Addressing men, in 2:223, women are referred to as a ‘place of sowing your seed’, whereas in 2:187, men and women are more mutually seen as a ‘garment for each other’.15 In the male-centred terminology offiqh-literature, a woman becomes permissible (halal) for a man in two ways: by marriage or possession, i.e.
possession of a slave woman (milk al-yamTn).16 The sexual act is identified with penetration (dukhul) (anal or vaginal), the active part being the man/penetrator and the passive part the woman/penetrated. Besides the active—passive dichotomy of male—rational and female—emotional which was well known to the Muslim jurists, Muslim jurists argued on the basis of the Prophet’s saying that women have weaker rationality, that women are overpowered quickly by emotions and have an inclination to disturb normal life.17 As sexuality is only permitted in a marriage, free women are expected to be virgins (bikr) before their first marriage and are classified as deflowered (thayyib) when being divorced or widowed. Being deflowered without marriage would mean a free woman would be a zaniya, a woman having committed unlawful intercourse (zina).Preserving virginity before marriage, observing the waiting period and respecting the gender segregation are measures that help to establish and secure the patrilineal lineage (nasab), which is seen as crucial in a patriarchal society. Gender segregation has to be upheld generally between opposite sexes as soon as they reach maturity. The usual exceptions are the mahdrim (plural of mahram), the ‘non-marriageable persons’, i.e.
the nearest relatives (see 4:23) with whom mingling is permissible. The ambiguous meaning of this concept between the sacred and the profane can be recognized when one semantically considers the root of this word, h-r-m, meaning ‘holy’, ‘forbidden’.Same-sex relations are legally prohibited. Lagrange has pointed out the impossibility of subsuming the discussion on same-sex relations in pre-modern fiqh-literature with the European/Western concept of homosexuality. The classical Arabic term liwat refers to active anal intercourse.18 Same-sex intercourse is equated to unlawful heterosexual intercourse by most schools of law. Interestingly, some scholars among the Shafi ‘is and Hanbalis hold that the death penalty by stoning applies only to the active partner.19
Legal literature also deals with a ‘third gender’, the khuntha (pl. khindth). The term can variously be translated as effeminate, transvestite, transsexual or hermaphrodite, referring to failings to concur with the prevailing normative standards of masculinity. However, it has been identified as a recognized ‘third gender’ in Oman by recent anthropological research.20
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