Expert Witness
Report on Gender Interactions and Women Clothing in the Islamic Tradition
The injunctions
pertaining to women clothing in the Islamic interpretive tradition and gender
relations in general (primarily Islamic jurisprudence known as fiqh) are result
of interpretive processes that have taken several centuries to form. What is
today considered four mainstream Sunni Islamic schools of law only reached large
degree of hermeneutical stability after
over 400 years of juristic and legal methodology reasoning (Hallaq 2004 ; Jackson
2002). Jackson, who uses a Darwinian
metaphor of the survival of the fittest, describes this process of the formation of mainstream
Sunnism as follows
by the end of the 4th/10th century,
the madhhab had emerged as the exclusive repository of legal authority. From
this point on, all interpretive activity, if it was to be sanctioned and
recognized as authoritative or “orthodox,” would have to take place within the
boundaries and under the auspices of a recognized school of law. By the end of
the 5th/ 11th century, based on the principle of survival of the fittest, the
number of Sunni schools would settle at four. These were the Hanafi, Maliki,
Shafi’i and Hanbali schools, all equally orthodox, all equally authoritative.
This is the number at which the Sunni schools of law have remained down to
modern times…. These schools would continue their monopoly over authoritative
legal interpretation unchallenged until the introduction of Western political,
legal and educational institutions in the 19th and 20th centuries” (
Jackson 2002 ,p.3).
Moreover, technically,
the idea of consensus (ijmāʿ) in Islamic
legal theory is defined “as the agreement of the community as represented by
its highly learned jurists living in a particular age or generation, an
agreement that bestows on those rulings or opinions subject to it a conclusive,
certain knowledge” (Hallaq 2009, p.21). The early Muslim scholars faced a
dilemma in justifying the universal validity of consensus as a source of
Islamic law. Consensus had to be grounded in the Qur’an or Sunna, but the
available evidence from these sources was insufficient or inconclusive. This
posed and still poses a challenge to the
authority of consensus, which later on
became a foundational principle in Islamic jurisprudence(Ibid.) The
classical theory of consensus was the product of a relatively late period, when
legal theory (usul ul fiqh), reached maturity in the fifth century of Islami
era (Hallaq 1998 , 427-450). However, it is important to note that the cases or
rules upon which there was consensus are extremely limited, constituting less
than 1 percent of the total body of law (Hallaq 2009, p.22).Furthermore, there is no consensus among classical Muslim
scholars on the issue of the nature of consensus as developed in classical Islamic
legal theory (e.g. is it generational , restricted to jurists of one region,
jurists in general or does it include also views of broader community, is it
issue specific or general etc. (Hallaq 1998; 2009) including on the issue of which body parts are to be covered by women (
Abou El Fadl 2001, 481-484) as shall be discussed in more detail below.
Importantly, there
are a number of interpretational
methodology related factors and presuppositions that characterise the four mainstream Sunni
schools of thought which are far from inevitable and alternative ones have
always existed in the Islamic interpretive tradition (Duderija 2011). Significantly,
the existing interpretations on gender related issues found in mainstream
Sunnism are also an outcome of certain assumptions pertaining to the nature of
masculinity and femininity that are strongly patriarchal in nature ( Duderija
2023; Duderija ,Alak and Hissong 2020). This also includes how classical Islamic
law conceptualised and defines the very concept of modesty ( haya’) itself (Duderija
2023; Yakin, Duderija and Van Raemdonck 2023).
While the classical
mainstream view on the issue of women attire and gender interactions is premised
on a constellation of interrelated concepts and ideas the most consequential is
the idea that women are embodiments of “fitna” i.e. that they possess
aggressive sexuality and are the source of irresistible sexual temptation that can lead “pious”
men astray that can have disastrous results for social disorder and chaos in
the (male) public sphere. This view of
female sexuality warrants that several socio-spatial mechanisms be put in place
to minimise this risk of fitna including the covering of every part of a woman’s
body ( with minority views allowing exposing of hands and face) and importance of adhering to comprehensive
gender segregation ( Duderija, Alak and Hissong 2020 ,44-58; Abou El Fadl 2001).
Furthermore, historical studies on veiling of women suggest that this practice
was not introduced by Islam but existed both in pre-Islamic Arabia and
civilisations with which both pre-Islamic and Islamic Arabia had contact (Ahmed
1992; Amer 2014 ).
The Qur’anic verses
that are linked to veiling ( 33:59-60; 33:53; 24:30-31) employ three operative words for this purpose
– namely, khimar, jilbab and hijab. Importantly, these terms have been not only
subject to various interpretations but their meaning has evolved over time (Amer
2014).However, like the entire edifice of Islamic law and ethics these verses operated
within a broader matrix that presupposes a class and gender based morality (Ayoub
2019). Barlas in her commentary on verse
33:59–60, which
contains the operative words jilbab (outer
garment), draws our attention to the Qur’an’s class-based modesty laws by stating:
[In] mandating
the jilbab, then, the Qur’an explicitly
connects it to a slave-owning
society in
which sexual abuse by non-Muslim men was normative, and its purpose
was to
distinguish free, believing women from slaves, who were presumed by jahili
[ignorant] men
to be nonbelievers and thus fair game. Only in a slave-owning jahili
society, then,
does the jilbab signify sexual non-availability, and only then if jahili
men were willing to invest in such a meaning (Barlas 2002, 56).
This Qur’anic
verse, therefore, aimed to protect free women from sexual harassment from
non-related men, which would have been seen as a loss of patriarchal honour of
the extended family these women were part of (Duderija, Alak and Hissong 2020,
44-58)
Qur’anic verse
33:53, where the term hijab appears, connotes the idea of seclusion or physical
separation via a curtain. According to traditional accounts this verse had a
special occasion of revelation ( asbab al nuzul) and specifically addresses
proper conduct for male guests visiting Muhammad’s house and interacting with
his wives. Related hadith document the historical context well. Additional
Quranic and hadith references frame hijab as veiling and seclusion of the
Prophet’s wives in recognition of their status, and as a precaution for
believers to curb their sexual appetite . Notably, seclusion of women existed
in other civilizations like pre-Islamic Arab society (Ibid.).
Verses 24:30-31
instruct believers to be modest and control their sexuality. Women are told to
not display ornaments (zina) except that normally is apparent (illa ma dhahara
minha) and draw “khimars” over their chests. The operative phrase wa’l
judribna bikhumurihinna ‘ala juyubihinna does not necessarily mean that women
need to cover their hair but for them to cover their bosoms/cleavage area which
customarily was left largely uncovered by (some) women in pre-Qur’anic Arabia
(Abou El Fadl 2001, 481-484).
Hadith based
evidence pertaining to the interpretation of these operative words ,which
mainstream classical Islam problematically conflates with the concept of Sunna
contrary to how the concept was understood in formative Islamic period (Duderija 2015,) largely reflects the
patriarchal paradigm and class and gender based modesty laws referred to above.
A large number
of Muslim scholars question that the Qur’anic
injunctions in these verses and associated hadith necessitate hair covering, as
the majority tradition holds (Ahmed 1992, Amer 2014; Abou El Fadl 2001; Barlas 2002; Lamrabet 2018; Ali 2006 ). They also recognize the
patriarchal honour and class and gender -based morality underlying mainstream
interpretations and do not consider them as normative (Duderija 2023). They
also adhere to different interpretational methodology of the Qur’an and Sunna when
doing so (Duderija 2011; Duderija 2017).
Importantly, when
examining juristic discussions around veiling, there are technically no laws
pertaining to veiling or seclusion itself. Rather, there are laws governing
which parts of the body must be covered during daily prayers as sexually
enticing areas (‘awra). The issue of women’s ‘ awra (areas of the body that
must be covered) is complex, with early jurists disagreeing on its definition.
Some debated whether hair, arms, calves, or face counted as ‘awra (Amer 2014).
As discussed at
length by Abou El Fadl (2001, 481-484) several material elements are often
overlooked in discussions of hijab and ‘awrah. According to Aboul El Fadl, five
noteworthy points include disagreements over : i.)what constituted female
adornments (zinah) as referred to in the Qur’anic verse (24:31); ii.) the veil
verse’s implication of addressing a specific historical problem; iii.)exempting
slave girls from certain rules; iv.)focusing on functionality, custom and
necessity; ; and v.) early practices like exposed breasts as noted above.
When addressing
women’s prayer attire, early traditions focused on clothing types rather than ‘awrah.
Debates focused on requirements for free versus slave women. Jurists also disagreed
over ‘awrah scope and whether its covering was obligatory or recommended for
valid prayer. Muslim jurists consistently argued that the laws mandating the
covering of the full body did not apply to slave-girls. It is noteworthy that
most held slave girls had lesser ‘awra, often from chest to knee the same as
that of a man. Later jurists argued slave girls should cover breasts or hair if
causing fitna (Ibid.).
Importantly, jurists often argued that what could be
lawfully exposed in a woman’s body was what would ordinarily appear according to
custom (‘ādah), nature (jibillah), and necessity (ḍarurah).For example, in relation to the idea of custom, several reports indicate that in
Medina ( city in which Muhammad lived
and died), Muslim and non-Muslim women normally wore long head-covers,
with the cloth thrown behind the ears and shoulders. They also wore vests open
in front, leaving the chest area exposed. Exposing the breasts was reportedly
commonly practiced until later in the Islamic period. Several early authorities
maintain that the primary aim of the relevant Quranic verse was to have women
cover their chests up to the beginning of the cleavage area, as exposing the
chests was a prevailing customary practice at the time (Ibid.).
There is also
evidence that in early Muslim community the historical practices of the early
Muslim community in relation to hijab /’awrah were far more nuanced and diverse
than what many contemporary writers often presume. For instance, there are
reports that some women in the Hijaz shortly after the death of Muhammad did not cover their hair in public. Additionally,
the descendant of the Prophet, Sakinah
bint al-Ḥusayn bin ‘Ali (also known as Fāṭimah al-Kubrā), is reported to have
invented a distinctive hairstyle called al-ṭurrah al-Sukayniyyah
(Sukaynah-style curls) that she wore in public. Significantly, Sakinah refused
to cover her hair and was imitated by the noble women of the Hijaz.[1] These examples underscore how the early
Islamic tradition was characterised by a diversity of practices and
perspectives, rather than a rigid adherence to a singular, immutable standard.
Within Islamic legal theory there are additional
mechanism that can be taken recourse to to argue that the “mainstream
traditional” Sunni Islam legal
injunctions pertaining to ‘awrah as should /could be approached contextually
and in relation to the needs/rights of others. These come under the umbrella of the purposes of
Islamic law (maqasid) one of which is to serve broader public interest (
maslaha) (Duderija 2014).
Another
consideration that is relevant to the issue under discussion is the development
of Islamic jurisprudence for Muslim minorities known as al fiqh al-aqaliyyat
that while still operating within the hermeneutical confines of traditional
Sunni Islam has developed additional juristic mechanisms and concepts( such as
fiqh al taysir) that introduce
additional concessions and flexibility into Islamic law to be applied in Muslim
minority contexts. This has been applied to issues like postponing of daily
prayers when at work , taking on otherwise prohibited loans ( e.g. student
loans ,car loans) and could also be
applied to taking off of hijabs for
Muslim women in certain situations (Duderija and Rane 2019, 209-229).
Finally, there
is some evidence in form of hadith reports suggesting that effeminate men
(kuntha) (possibly referred in the Qur’an 24:31 as ghayr uli al-irba min
al-rijal- men who are not attracted
to women) at the time of Mohammad were allowed access to the women’s quarters of Muslim homes
and that he permitted such men to visit or serve his wives in his home (Kuggle 2013;
Ludovic 2019). Importantly, one of the leading scholars of gender issues in Islam Vanja Hamzic
recognises and urges for the adoption of the distinction between gender (constituting part of person’s core identity /deep psychological makeup , personal
sense of body, and other expressions of gender, including dress, speech and
mannerisms) and anatomy/biological sex and argues in favour of possibility
of sex/gender reassignment by means of “modification of bodily appearance or function
by medical, surgical or other means” if chosen voluntarily (Hamzic 2016
,24-25).
Conclusion:
Based on the
above presented evidence, it is apparent
that the traditional mainstream Islamic position on modesty requirements for
women, including obligatory hair covering, is founded upon an interpretive
tradition that evolved over many centuries through complex and nuanced
processes of juristic reasoning.
A diversity of
modesty practices existed in early Muslim societies, and the Qur’anic references
to modesty were aimed at protecting vulnerable classes in given cultural
milieus rather than establishing rigid immutable standards. Later juristic
discussions also demonstrated accommodations could be made to societal needs
and customs.
Overall, my
analysis suggests important qualifications should be made regarding claims that
classical doctrines present universal or immutable standards of modesty. A more
contextualised and historically nuanced appreciation of primary sources,
combined with broader more contextualist methodologies of Islamic legal interpretation,
especially in Muslim minority western context, leave ample scope for
reconsidering traditional teachings on women’s dress code, the concept of ‘awra
and more generally that of haya’ (“modesty”)
as it pertains to gender interactions in the public sphere.
As to the
specific questions my responses below
are informed by the above analysis.
- Are there
any Islamic requirements in relation to engagement in exercise such as
group fitness, aerobics and weight lifting by women when in the company of
men who are not close relatives.
Based on the above presented analysis, in my view there is no specific , uniform Islamic
requirement in this respect. This is a question of general etiquette and
customary standards that can vary considerably from culture to culture, society
to society or individual to individual.
- If not
addressed in Question 1 above, what if any Islamic doctrinal limitations
or requirements might affect Muslim women exercising in the company of men
who are not their relatives?
As per previous response.
- How do the
above requirements apply, if at all, to Muslim women's mode of dress
and/or exercise in the company of a transgender woman? In particular, does
Islamic doctrine treat a transgender woman as a man or a woman for the
purposes of determining the clothing that should be worn by Muslim women,
the coverage of a Muslim woman’s body in that person’s company and whether
it is permissible for a Muslim woman to exercise together with a
transgender woman?
Based on my
presented analysis the above guidelines identified in relation to question
one apply equally to both cis and transgender individuals. As such it
would be permissible for Muslim woman to exercise together with a transgender
woman or cisman.
a) If there are
any religious or doctrinal limitations or requirements that might affect
cisgender Muslim women exercising in the company of transgender women, to what
extent are these accepted among cisgender Muslim women?
N/A.
b) Has there
been any quantitative analysis which has examined how cisgender Muslim women
self-identify in relation to any of the religious beliefs and/or doctrinal
limitations described in the Fernwood Report? If so, please also consider this
data in your response to (1) above.
I am not
aware of any such study .
References:
Abou El Fadl,
K. (2001). Speaking in God's name. Oneworld.
Ahmed, L.
(1992). Women and gender in Islam. Yale University Press.
Ali, Kecia, Sexual
Ethics and Islam (Oxford: Oneworld, 2006).
Amer, S.
(2014). What is veiling? University of North Carolina Press.
Ayubi, Z.
(2019). Gendered morality: Classical Islamic ethics of the self, family and
society. Columbia University Press.
Barlas, A.
(2002). "Believing women" in Islam: Unreading patriarchal
interpretations of the Qur'ān. University of Texas Press.
Duderija, A.
(2011). Constructing religiously ideal "believer" and "Muslim
woman" concepts: Neo-traditional Salafi and progressive Muslim methods of
interpretation (Manahij). Palgrave.
Duderija, A.
(Ed.). (2015). The Sunna and its status in Islamic law: The search for a sound
hadith. Palgrave.
Duderija, A.
(2017) .The Imperatives of Progressive Islam. London: Routledge.
Duderija, A.
(Ed.). (2014). Maqasid al-Shari'a and contemporary reformist Muslim thought: An
examination. Palgrave.
Duderija, A.
(2023). Overcoming the conceptual link between patriarchal honor and female
modesty laws in the Islamic interpretative tradition. In Shame, Modesty, and
Honor in Islam (pp. 37-52). Bloomsbury.
Duderija, A.,
& Rane, H. (2019). Islam and Muslims in the West: Major issues and
debates. Springer.
Hallaq, W.
(2004). The origins and evolution of Islamic law. Cambridge University
Press.
Hallaq, W.
(2009). Introduction to Islamic law. Cambridge University Press.
Hallaq, W. B.
(1986). On the authoritativeness of Sunni consensus. International Journal
of Middle East Studies, 18(4), 427-454.
Hamzic, V. (2016).
Sexual and Gender Diversity in the Muslim World: History, Law and Vernacular
Knowledge, I.B. Tauris.
Jackson, S.
(2002). Jihad and the modern world. Journal of Islamic Law and Culture, 7,
1-26.
Kugle.S. (2013).
Living Out Islam: Voices of Gay, Lesbian, and Transgender Muslims by New York,
NY: New York University Press, 2014.
Lamrabet, Asma.
(2018). Women and Men in the Qur’an, Muneera Salem-Murdock (trans.), (New York:
Palgrave).
Yakin, A. U.,
Duderija, A., & Van Raemdonck, A. (2023). Examining the concept of Haya:
Interpretations of shame, modesty, and honor in Islam. In Shame, Modesty,
and Honor in Islam (pp. 1-19). Bloomsbury.
Zahed, L.M.(2019).
Homosexuality, Trans-identity, and Islam: A Study of Scripture Confronting
the Politics of Gender and Sexuality. Amsterdam University Press.
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