Reinterpreting the Legal Ruling on Marriage of Intersex Individuals in Light of Dynamic Jurisprudence and Comparative Law: A Case Study of Iran and England
Keywords:
intersex individuals, marriage, family law, Jaʿfari Shiʿa jurisprudence, comparative law, English law, gender identityAbstract
The phenomenon of congenital gender diversity or “intersex” as a biological reality has consistently created complex challenges for legal systems worldwide. This study aims to conduct a precise and comprehensive examination of how two legal systems—Iran (based on Jaʿfari Shiʿa jurisprudence) and England (based on common law)—address one of the most sensitive of these challenges, namely marriage. The findings indicate that Iran, prioritizing the preservation of public order and compliance with Sharia rulings, deems the marriage of the khunthā mushkil (an individual with indeterminate or non-distinguishable sexual characteristics) invalid due to the absence of the essential condition of “sexual difference.” For the khunthā ẓāhir (an intersex person with more readily identifiable sex characteristics), Iran also imposes restrictive conditions. In contrast, England, emphasizing “the right to self-determination” and “human rights,” by enacting laws such as the Gender Recognition Act (2004) and the Marriage (Same Sex Couples) Act (2013), has established a relatively comprehensive legal framework to recognize acquired gender identity and permit the marriage of such individuals. Using a descriptive-analytical method, this article explains these fundamental differences and proposes legal development strategies aligned with Islamic values while addressing the real-life needs of intersex individuals in Iran.
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