24 – Book of the Khuntha (intersex person)
If a newborn possesses both a vulva and a penis, the child is classified as a khuntha. Should the urine emerge from the penis, the child is treated as a boy; if it emerges from the vulva, the child is treated as a girl. If urine issues from both organs and one precedes the other, the child is assigned to the organ through which the urine first appears. If no precedence can be determined, abundance is of no consequence according to Abū Ḥanīfah, whereas Abū Yūsuf and Muḥammad hold that the child is assigned to whichever organ is used more frequently.
When the khuntha reaches puberty, the appearance of a beard or the ability to have intercourse with women designates the person as male. Should breasts like those of a woman develop, milk descend from them, menstruation occur, pregnancy ensue, or penetration through the vulva become possible, the person is deemed female. If none of these distinguishing signs appears, the individual remains a khuntha mushkil (indeterminate khuntha).
In congregational prayer, such a person stands between the rows of men and women. A female slave is purchased to perform the circumcision if the khuntha has sufficient wealth; if not, the imam buys one from the public treasury. After the circumcision is completed, the slave is sold and the proceeds are returned to the treasury.
If a man dies leaving a son and a khuntha, Abū Ḥanīfah rules that the estate is divided into three shares: two shares for the son and one share for the khuntha. Inheritance-wise, he treats the khuntha as a female unless subsequent evidence proves otherwise, in which case that determination is followed.
Abū Yūsuf and Muḥammad say that the khuntha receives half the share of a male and half the share of a female; this is also the view of al-Shaʿbī. They diverged, however, in the practical calculation. According to Abū Yūsuf, the estate is divided into seven shares—four for the son and three for the khuntha—whereas Muḥammad computes twelve shares—seven for the son and five for the khuntha.