Dr. Jonathan A. C. Brown writes:
From an Islamic perspective, the LGBTQ issue is not one question but several distinct ones. First of all, there is the issue of same-sex attraction. Second, there is the question of actual sexual activity. And finally, there is the question of gender identity.
Attraction & Love
The nature of attraction and, along the same lines, love, are serious matters. They deserve examination in and of themselves, and they also have important ethical dimensions and consequences. But why a person is attracted to one sex or the other, and whether or not a person’s love for another person is “real” are not shariah issues. In great part this is because Muslim scholars understood the origins of desire and emotion to be either beyond one’s control or to be moldable over time by practice and discipline; this was a matter of ethical improvement in order to avoid falling into sin. The emotions or desires were not sins themselves, nor did they have any legal consequences. As the famous Sufi al-Junayd (d. 910) explained, “A human being is not blamed for what is in their nature. They are only blamed if they act on what is in their nature.” As I already presented elsewhere, in the context of sexuality and sexual relations, the shariah is concerned with acts, not with feelings, affections, attractions, or inclinations. Only when emotions and desires manifest themselves in speech or actions are sins committed and prohibitions violated.
In fact, pre-modern Muslim scholars frequently understood that same-sex attraction could be perfectly ‘natural’ (Disclaimer: I don’t support the following observation, I am just reporting it). For example, the case of men being attracted to pre-teen boys was ‘natural’ in the sense that it did not represent some moral deviance or manifest some abomination; it was simply a man being attracted to the beauty (jamāl) of a pre-teen boy… the same quality of beauty found in women. Famously conservative medieval Muslim jurists wrote folios of poems expounding their love, sometimes their obsession, for male friends and companions. Whether or not a desire or attraction is ‘natural’ or not, whether a person is born with that inclination or not, is irrelevant in the shariah. If certain actions are prohibited, then whether or not one desires them is inconsequential, whether that desire is inborn or acquired.
It is in the realm of actions that the bulk of Islam’s answer to the LGBTQ question lies. According to the shariah, sexual acts outside of a legitimate relationship (i.e., marriage) are prohibited, though the punishments for various acts have differed dramatically. As has been made abundantly clear, the shariah as understood and practiced by centuries of Muslim states and scholars had no interest in poking into people’s private sex lives or punishing what seems to have been the widespread phenomenon of same-sex relationships. The policy was basically ‘Don’t ask; Don’t tell.’ But there remains little doubt that same-sex sexual acts, in particular sodomy, have been, and remain, categorically prohibited in Islam (see for a review of the evidence from the Qur’an, Sunnah, and Muslim legal discourse).
Some Muslim academics in the West (often identifying themselves as Progressive Muslims) have argued against this prohibition, claiming that it was either the result of a misreading of scripture or that society has moved beyond the context of such prohibitions. Some Progressive Muslim arguments agree that marriage is required for licit sex in Islam. But they add that there is nothing in Islam that says that marriage has to be between opposite genders. Marriage is a contract in Islam, they point out, and so there is nothing prohibiting two men or two women from signing one. These scholars point to the Islamic legal principle that ‘The presumption in contracts and transactions is permissibility.’
The problem with this argument is that, although marriage in Islam has the form of a contract (it’s an agreement between two parties, and these parties can place conditions as part of their agreement), it’s not just any contract. It deals with the primal matters of reproduction, child-rearing, and the most fundamental of all human relationships. Hence, in books of Islamic law, the presumption of permissibility in contracts appears alongside another crucial principle, shared by all schools of law: ‘The presumption for sexual access is prohibition (al-aṣl fī al-abḍāʿ al-taḥrīm).’ So only sexual relationships explicitly permitted by the Qur’an and Sunnah are allowed. Addressing the argument that the sexual practices of other religious traditions should be allowed by Muslims on the basis of the presumption of permissibility in human affairs, Ibn al-Qayyim (d. 1351) retorts, “The presumption for sexual access is prohibition, except for what God and His Messenger ﷺ have permitted (al-aṣl fī al-furūj al-taḥrīm illā mā abāḥahu Allāh wa rasūluhu).”
 Al-insān lā yuʿābu bi-mā fī ṭabʿihi innamā yuʿābu idhā faʿala bi-mā fī ṭabʿihi; Abū Nuʿaym al-Iṣbahānī, Ḥilyat al-awliyā’, 10 vols. (Beirut: Dār al-Fikr, 1996), 10:269.
 Khaled El-Rouayheb, Before Homosexuality in the Arab-Islamic World 1500-1800 (Chicago: University of Chicago Press, 2005), 115-6.
 This maxim on sexual access is found phrased as such by both the Shāfiʿī scholar al-Suyūṭī (d. 1505) and the Ḥanafī scholar Ibn Nujaym (d. 1562). See Jalāl al-Dīn al-Suyūṭī, al-Ashbāh wa’l- naẓā’ir, ed. Muḥammad al-Muʿtaṣim al-Baghdādī (Beirut: Dār al-Kitāb al-ʿArabī, 1414/1993), 135; Ibn Nujaym, al-Ashbāh wa’l-naẓā’ir, ed. Muḥammad Muṭīʿ al-Ḥāfiẓ (Beirut: Dār al-Fikr, 1983), 74.
 Ibn Qayyim al-Jawziyya, Aḥkām ahl al-dhimma, ed. Yūsuf Aḥmad al-Bakrī and Shākir Tawfīq al-ʿĀrūrī (Dammam: Ramādī li’l-Nashr, 1418/1997), 715.
Extract from LGBTQ and Islam Revisited: The Days of the Donald by Dr. Jonathan A. C. Brown who is a Director of Research at Yaqeen Institute, and an Associate Professor and Chair of Islamic Civilization at Georgetown University. He is the editor in chief of the Oxford Encyclopedia of Islam and the Law, and the author of several books including Misquoting Muhammad: The Challenges and Choices of Interpreting the Prophet’s Legacy.
Categories: Dr Jonathan Brown, Homosexuality, Islam
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