Transgender Legal Recognition in North Africa: Between the Hammer of Sharia and the Anvil of the Judiciary

Abstract

Abstract The right to legal gender recognition is integral to transgender rights and is the final step for many transgender people to realise their true gender identity. However, In North Africa, this right is primarily restricted due to the lack of a legislative framework that governs the issue. This legislative vacuum means two things: firstly, principles of Sharīʿah are the de-facto law regulating the matter, and secondly, Courts will have the jurisdiction over reviewing legal gender recognition applications. Sunni Islamic scholars did engage on transgender issues starting in the 1980s when Egypt’s Al-Azhar and Saudi Arabia’s Islamic Fiqh Council issued prominent fatwas, providing a very unfavourable interpretation of transgender people. The fatwas viewed transgender people as mentally ill who should not be allowed access to gender-affirming healthcare and should be provided with mental treatment to ‘return to their true sex’ and fit within the binary. While the fatwas only discussed banning access to gender-affirming healthcare, North African Courts adapted this ban to mean a ban on legal gender recognition for transgender people. Thus, judicial opinions in the region developed to deny legal gender recognition on the grounds of Sharīʿah. However, a 2018 Tunisian Court became an anomaly when it reinterpreted Sharīʿah to allow a transman legal gender recognition in a landmark decision. The impact of this judgment remains limited, as so far, Courts still maintain their ban on legal gender recognition. The paper is conducting the primary scholarly effort to establish a legal theory on legal gender recognition for transgender people in North Africa by investigating the issue by analysing case law from Egypt, Tunisia, Algeria, and Sunni Fatwas from Al-Azhar and Islāmic Fiqh Council to theorise the region’s legal and religious discourse on legal gender recognition for transgender people.