Annulling the Marriage of Two Men: A Marginal Note in a Yemeni Manuscript

During my second week of research at the Biblioteca Ambrosiana in Milan, last September, I found a note in a manuscript that made my heart race.

Most of the Arabic manuscripts at the Ambrosiana are from Yemen, purchased from a single collector, Giuseppe Caprotti (1869-1919 CE). Many of these share physical and stylistic traits, like similar kinds of handwriting and the convention of using a larger pen for title-headings (more on the topic in the Chroniques du manuscrit au Yémen). I had become used to these conventions as I studied Yemeni manuscripts with medical content over the last several months, and was thus comfortable reading these manuscripts. But on this day in September, while sleepily flipping through page after page of manuscript Arabi Nuovo Fondi E437 and waiting for my next espresso break, a short note at the bottom of the page caught my eye: 

فسختُ النكاح بين الذكورين و اشهدت على صدور ذلك اعني و انا بمجلس القضى من وضع اسمه بعد خطي هذا بتاريخ اخر ربيع الاخر سنة اربع و ستين و الف ١٠٦٤

I annulled a marriage between two men, and I called upon a witness to its issuance*, while I was in the court. By [the witness] I mean, one who puts his name after my note here, at the end of Rabī’ II 1064.

Jolted out of my afternoon haze, I read and reread the note. It was written in a clean, clear نسخي / naskhi handwriting towards the end of the manuscript. The rules against photography at the Ambrosiana precluded me from taking a photograph, but there was no doubting the clarity of the handwriting. Not a single letter was smudged or otherwise harmed by worm or wear,  and the first word even had a vowel marked, clarifying that this sentence is written in the first person. It seemed to be a note penned by someone who had cancelled the validity of the marriage ceremony, نكاح / nikāḥ, between two men. There are two plural words used in this note which I find unusual. The word used for the beginning of the court proceedings صدور / ṣudūr, which is also a word which can refer to the head or leader of a gathering, usually occurs in the singular. Another possible reading is that the judge summoned a witness to the joint leadership of the ruling. Also, the word for the two men, ذكورين / dhukūrayn, appears to be the dual form of a word that is already a plural—the word ذُكور / dhukūr means “males” in the Quranic verse 42:49, and is the plural of ذكر / dhakar, or male. Despite these peculiarities of language, which is often a feature that manuscript researchers encounter, it is quite possible to make sense of this note.

This note seemed to indicate that a Muslim jurist, or قاضي / qāḍī, likely the author of this note, married two men, before 1064 AH / 1654 CE. As much as I would want to believe this to be possible, I think there is a more likely explanation. Someone officiated a marriage ceremony between two people: one person was a man and the other was either a woman or a خنثى / khunthā, meaning someone whose gender was ambiguous to others, usually because of the person’s genitalia and/or sex characteristics. Later on, a court decided that this latter person was actually “a man,” perhaps by calling on relevant witnesses or physicians to examine the person, and thus the marriage between these two “men” was annulled.

A compendium of treatises on various legal and religious topics, manuscript codex Arabi Nuovo Fondi E437 also includes a medical text. It was the kind of manuscript that would have been of interest to, and could have been owned by, a student of the law, a jurist (قاضي / qāḍī), or another functionary of the court. There was no name included after the note, though there was plenty of space at the bottom of the page for one. The rest of the page is covered in miscellaneous notes and remedies in an informal handwriting. There is no official signature, because this was not an official document—perhaps the person who wrote this was practicing on a spare bit of paper before copying it on an official document, or a court register. While my explanation for the note occurring at the bottom of the page cannot move beyond an educated guess, I believe this kind of “documentary” source, which records the practice of law, is a crucial resource for historians of gender and sexuality as well as for feminist scholars of Islamic law.

In Disability in the Ottoman Arab World, 1500-1800, historian Sara Scalenghe writes of several accounts of the court intervening in marriages to rule on the gender of a person, during the sixteenth and seventeenth centuries. She describes the case of Ali/Aliyya, a teenage boy whom physicians found to be a girl, after it came to the court’s attention that a man, Abd al-Rahman, was in love with Ali. In another case, a pious man named Muhammad was married to a “woman who was an obvious khuntha” (امراة خنثى واضح / ‘imra’a khunthā wāḍiḥ) but a cousin and rejected suitor of Muhammad’s wife brought their marriage to the attention of the city’s ruler. After women medical practitioners found “her” to be a man, the Amir punished them both publicly—and unjustly, in the opinion of the chronicler who first recorded this episode. The note I found at the Ambrosiana may point to a case such as these.

Many questions remain unanswered. What prompted an inquiry into this marriage? Were any questions raised at the initial marriage ceremony as to the gender of the participants? How was it determined that these were “two men”? Finding queer and trans ancestors in the archives is extremely important to LGBTQI+ people today. But there is also another reason for drawing special attention to this marginal note which regards histories of gender and sexuality in the Islamic world, broadly. We can’t write the history of women—or practice feminist Islamic legal studies—if we impose biologically determined, binary gender on the past in our search for women.

Scholarship on the medieval Islamic world, from medical and legal theory to social and legal history, supports the idea that gender existed beyond a male-female binary. From the 1970s onward, a rich field of scholarship on the history of gender and sexuality has explored non-binary “identities,” like khwaja sira خواجه سرا and khunthāخنثى (an Islamic legal and medical category), and the ways these complex identities are present today. The field has investigated the ways that class, religious identity, devotion and slavery could gender people. Critical studies of Islamic masculinities are emerging, and scholars have long argued that beardless boys are treated as a separate gender than mature men in both literary and legal contexts.

However, few references to this literature can be found in recent debates about feminism in Islamic Legal Studies. Suggesting ways to move beyond the “patriarchal” and “White Supremacist” modes of Islamic Studies which focus exclusively on Muslim male scholars in the premodern world, Ayesha Chaudhry pushes for a progressive “Intersectional Islamic Studies,” in which modern Muslims (especially women) are also authoritative and authentic. Others, like Sohaira Siddiqui, argue that there is a longer history to this kind of critique, and that Chaudhry’s program curtails the agency of scholars, especially those approaching the complexity of the premodern Islamic world. Focused on Islamic law, neither Chaudhry’s article nor Siddiqui’s response engages with work on the history and anthropology of gender and sexuality in the Islamic world. Similarly, historians of sexuality rarely suggest the impact their work could have on contemporary Muslims—let alone speak to and advocate for these communities. Muslims of marginalized gender and sexual identities seek examples of accommodation and acceptance in the Muslim past, as they navigate homophobia and transphobia in their communities, and seek to repeal the European colonial laws which imposed these realities. Histories of gender and sexuality can provide insight into precolonial social lives that Islamic legal studies currently do not. Two ships, feminist Islamic Legal Studies and the history of gender and sexuality, are passing each other, to the detriment of both fields—and many Muslims today.

Part of the reason for the siloing of these two fields is the difference in the kinds of sources they draw on, and the ways they analyze them. Generally, scholars of Islamic Legal Studies, and feminists within that field, are interested in doctrine: the Quran and its hermeneutical traditions, jurisprudential texts of Islamic law, and prophetic traditions. Some historians of gender and sexuality, especially those working on early Islam, have worked with these sources as well—especially jurisprudence. However, their primary archive has been ادب / adab, or literary texts (poetry, biography, chronicle, travelogue), as well as the bread and butter of social history: government archives. The richest of these for the Islamic world are those of the Ottoman Empire. And rarely does a single scholar possess the ability to read across all of the relevant languages and genres; collaborative research practices will help in this regard. As Khaled El-Rouayheb noted in his Review of Elyse Semerdjian’s book, Off the Straight Path: Elicit Sex, Law and Community in Ottoman Aleppo, “These different approaches and competencies are often reinforced institutionally: scholars who work on court registers are often “Ottoman historians,” whereas those who work on Arabic religious and literary texts are usually in “Arabic-Islamic studies.”Gender categories were constructed and debated across different textual genres in the Islamic world. Jurisprudential manuals constructed legal ideals, but these ideals did not always match up with court practice. The same could be said, for example, about theoretical medical texts and practices, as represented by case histories.

This division is also alive in the question of whether only legal doctrine should determine what we consider Islam to be, or whether the lives of Muslims—all Muslims, not just علماء / ‘ulamā’ or scholars—should also constitute a valuable source for understanding what Islam is, and can be. This question is one that has animated the debate represented by Chaudhry’s work and its critics discussed above, but Chaudhry is advocating mainly for the inclusion of the ideas of modern and contemporary Muslim women in Islamic legal studies; she does not urge us to think of people outside the gender binary, or of the lives of premodern women. Perhaps the numbers of Islamic texts written by premodern women are limited, but we can also draw on the growing social histories of the Islamic world to learn of—and from—non-literate people, as we seek to address key questions as scholars of Islam today.

I may have found a trace of a non-binary person and “their” partner, marginalized people in a marginal comment on Arabi Nuovo Fondi E437. And I believe that feminist research in Islamic studies should be as attentive to non-binary Muslim peoples as it is to Muslim women, past and present. To understand the category of “woman” in Islam, we must study all textual genres, as well as genders, including masculinities, trans- and nonbinary genders, and the many names, forms or silences which these may have outside of modern LGBTQI+ identities. To do so, Islamic Studies should make good use of the work done by those studying documentary sources and social history. Adopting a research mode which integrates legal theory, legal practice and social history may yet help us learn how to understand this marginal comment, the people about whom it was written, and may bring more such events as this possible نكاح / nikāḥ annulment to our attention.

*In the original publication of this post, ṣudūr was translated as commencements rather than issuance. This, though nothing else in the post, has been amended. See the update below for more information.

Update by the author on 6/20/2020

Many scholars of Islamic legal history have taken the time to read and engage with my original post and suggested that the word I read in the margins to mean “two men,” al-dhukūrayn, should be read as al-madhkūrayn, “two aforementioned people.” I acknowledge that I misread what was likely a subtle lām-mīm ligature at the beginning of the word, and appreciate those scholars who have reached out to me in the spirit of care and generosity. However, no rules of Arabic grammar prevent the possibility that one of the madhkūrayn, the two aforementioned people, could refer to a khunthā, a person who is neither a man or a woman, whose presence in the Islamic world is well attested to by a variety of sources. This point was lost on those who claimed that this mistake disproved the argument of the post. The larger question of how scholars have brought heteronormative assumptions to their interpretations of texts is one that feminist scholars of Islam have long taken up in their work.

Who is worthy of being considered the subject of madhkūr—and a subject of history? I take my misreading to be generative, and true to the intention of the post—for scholars of Islamic law and history to remember that there were more than two genders in the medieval Islamic world as they read and interpret their sources. From what I have learned in the last week, Mohammad ibn Sallāma and his spouse were likely referred to as al-madhkūrayn in their wedding contract — though his spouse is described to have a variety of genders by different sources, including a “woman who was an obvious khuntha” (امراة خنثى واضح / ‘imra’a khunthā wāḍiḥ). The note I found in Arabi Nuovo Fondi E437 is certainly not a legal document, like a marriage contract, nor is it the kind of note that people leave in the margins of their books to take note of current events. The note was devoid of any relevant context, like location or names, which madhkūrayn (or the later ismahū) could refer back to. If it was left by someone practicing writing a sentence about annulling a marriage before making an official copy, what was the reason for this marriage to be annulled? Much remains mysterious about this note, but the possibility of it referring to a non-binary person is not one of them. 

There are decades of scholarship on the khunthā in fiqh (Islamic law), as well as the lack of a strict gender binary in medical discussions, for example, about the generation of humans. But there should be much more—and scholars should do their best to make technical training increasingly available to students interested in gender and sexuality. We need careful readings of texts to understand the variety of discourses on gender and sexuality in medicine, law, literature and other genres of texts composed in the Islamic world. These careful readings should be based not only on sound philology, but a critical understanding of our own analytical assumptions. Let us look inward and ask why we, as scholars, continue to ignore the possibilities of these non-binary lives in our archives, especially when doing so has ongoing impacts on LGBTQ+ Muslims today.