Intisar Rabb, Conscience Claims in Islamic Law: A Case Study, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground 183 (William N. Eskridge Jr. & Robin Fretwell Wilson eds., 2019).
Abstract: Equality and nondiscrimination norms within Islam are illustrated by episodes that display how decision makers interpret conscience claims made on the basis of or within contexts of Islamic law. This chapter centers primarily on ways in which Islamic law decision makers consider such claims from transsexual and transgender communities in the Muslim world. In 1986, the leader of Iran’s Revolution issued a fatwā authorizing sexual reassignment surgery. The government subsequently set up a “sex-change bureaucracy” to simultaneously accommodate and regulate the procedure. Yet norms of gender — rather than equality — animated the accommodation. The failure to address equality norms exemplifies typical (though not essential) approaches to Islamic law in Muslim majoritarian contexts. By contrast is a Muslim minoritarian context: Muhammad Ali’s conscience claim by which he sought exemption from the military draft for the Vietnam War based on his Islamic convictions. The U.S. Supreme Court eventually granted the exemption on a technicality that also sidestepped the question of equality. Nevertheless, this episode positively shaped equality norms in the U.S., over time, and gender-based litigation in the majoritarian Muslim world has the potential to do likewise — through reasoned consideration and interpretation of conscience claims. This chapter explores the interpretation behind such claims.