The Fight for LGBTQI+ Rights in the Maghreb and the Middle East

Eva Plevier / ANP MAG / ANP via AFP

International Day Against Homophobia, Transphobia, and Biphobia: In the Face of Fundamentalism, Dignity, Struggle, and Courage. Living one’s sexual orientation without fear is a human right. Living one’s gender identity in safety is a human right. The rights of LGBTQI+ people are human rights.

17 May 2024. On this World Day Against Homophobia, Transphobia, and Biphobia, the International Federation for Human Rights (FIDH) reaffirms its unwavering support for LGBTQI+ people and rights defenders and continues the fight against all forms of discrimination and oppression.

The criminalisation of homosexuality and trans-identity is a devastating reality in over 60 countries. In these countries, the LGBTQI+ community is exposed to severe penalties, sometimes even up to the death penalty. These laws contribute to the marginalisation and stigmatisation of these minorities. In addition to criminalising sexual acts, gender expression is also criminalised.

In several Maghreb and Middle Eastern countries, the criminalisation of same-sex sexual relations and trans-identity is often rooted in a French or British colonial heritage. These inherited legal systems have endured and been perpetuated by the sacralisation of discrimination and social norms, rooted in a patriarchal, cisgender, and heteronormative model. The rise of fundamentalism combined with a policy of widespread repression is creating a climate of insecurity and oppression in both the private and public spheres for LGBTQI+ people in the region.

Despite these challenges, courageous voices are emerging to defend the equality and fundamental rights of the LGBTQI+ community. They are calling for concerted action by governments and civil society to end systemic discrimination and ensure an egalitarian society for all. In the Middle East, particularly in Saudi Arabia, Qatar, the United Arab Emirates, and Yemen, laws provide for the death penalty for those convicted of consensual sexual acts with people of the same sex, under strict interpretations of Sharia law.

One Hundred Lashes

In Yemen, Article 246 of the penal code punishes anal sex with 100 lashes and/or one year’s imprisonment for unmarried people and stoning for married people. More recently, in Iraq, following hate campaigns by political figures targeting the LGBTQ+ community, on April 27, the Iraqi Parliament adopted amendments to an anti-prostitution law dating from 1988. These amendments provide for sentences of up to fifteen years’ imprisonment for homosexual relations and up to three years for people in gender transition, marking a severe setback for the rights of LGBTQI+ people.

Alongside criminal provisions explicitly incriminating homosexuality, as in Algeria, where Article 338 of the Penal Code punishes anyone guilty of a homosexual act with up to two years’ imprisonment and a fine, or Article 520 of the Syrian Penal Code of 1949, which prohibits "sexual intercourse against nature" and makes it punishable by up to three years’ imprisonment, or Article 230 of the Tunisian Penal Code, which criminalises acts of homosexuality by both men and women, the authorities in countries in the region often resort to legal provisions criminalising gender expression. This is the case in Oman, which in January 2018 promulgated a new Penal Code that criminalises, for the first time, non-conforming and non-normative gender expression. Article 266 thus provides for a sentence of one month to one year’s imprisonment or a fine of 100 to 300 riyals (US$260 to US$780), or both, for any man who "presents himself dressed as a woman". Provisions relating to public decency and modesty are also used to repress gender minorities. In Kuwait, the decency law, which previously had a general framework, now stipulates that anyone "imitating the opposite sex in any way" is liable to one year’s imprisonment or a fine of 1,000 Kuwaiti dinars (US$3,322), or both.

These severe punishments, including the death penalty for consensual sexual acts between same-sex individuals, are often justified by strict interpretations of religion. The harmful influence of certain media and social networks amplifies hostile attitudes towards the LGBTQI+ community with complete impunity.

Campaigns to "hunt" LGBTQI+ individuals, arbitrary and prolonged imprisonments, police and judicial surveillance, and intimidation are frequently observed in countries with such laws. Yemen, Libya, and Egypt are notable examples of this. This oppression is often hidden by the authorities in the absence of verified data and official statistics on the actual prosecutions against LGBTQI+ individuals. The underreporting of arrests and prosecutions in countries like Morocco and Qatar is often highlighted by LGBTQI+ rights organisations.

Inhumane and degrading treatments are also inflicted on LGBTQI+ individuals. Humiliating practices, such as anal testing (considered an act of torture by the United Nations), are used to "prove" the sexual orientation of the accused. In Tunisia, despite repeated calls from human rights organisations, this practice persists. Beyond their obviously problematic nature, these practices reinforce social stigmatisation and thus discrimination against LGBTQI+ communities where they occur.

What Socio-Economic Rights Do LGBTQI+ People have?

In addition to institutional violence, LGBTQI+ people suffer from multiple socio-economic barriers that hinder access to basic rights in employment, housing, health, and education. These barriers contribute to the systematic marginalization and exclusion of LGBTQI+ people in society. It is imperative to implement policies and practices that consider their specific needs to ensure equitable access to these fundamental rights for all, regardless of sexual orientation, gender identity and expression, and sexual characteristics (SOGIESC).

Furthermore, in the wider context of an acute human rights crisis and widespread repression in the MENA region, governments are adopting a hostile attitude and total opacity towards LGBTQI+ issues. In Saudi Arabia, no official LGBTQI+ organization is tolerated, and any form of activism in favor of these people’s rights is severely repressed. This hostility also manifests itself in the lack of transparency in official reports on discrimination based on sexual orientation, gender identity and expression, and sexual characteristics (SOGIESC).

This environment of terror encourages the isolation of LGBTQI+ people, making attempts to establish communities more difficult, public affirmation impossible, and the sharing of information particularly arduous. Despite this climate and the risks involved, courageous voices are rising to demand equality and dignity. LGBTQI+ rights movements are mobilizing, building alliances, and challenging oppression. In Tunisia, the FIDH has documented various forms of intimidation by law enforcement and the judiciary against LGBTQI+ rights defenders. Notable incidents include the attacks and intimidation against the association Damj and its coordinator Mira ben Salah in April 2024.

In this difficult context, among the advocacy and protection actions undertaken by the FIDH, the Observatory for the Protection of Human Rights Defenders, created in partnership with the OMCT in 2007, plays a crucial role in alerting and supporting defenders. It aims to support defenders, including LGBTQI+ activists, against repression and violence while attempting to provide a concrete response to the challenges faced. Its actions include international alerts on harassment cases, legal assistance during trials, investigation and solidarity missions, and mobilization with international organizations. In close collaboration with NGOs, the Observatory ensures enhanced protection and defense of human rights, highlighting its concrete commitment to the security and dignity of endangered defenders.

Given the persistent challenges faced by LGBTQI+ individuals in the region, it is imperative that concrete and immediate measures are taken to guarantee their fundamental rights and security. To this end, we call on governments to respect LGBTQI+ rights and to end all forms of repression against them and their defenders. The following recommendations aim to realize this commitment:

 End practices of torture and ill-treatment, including the abolition of anal testing often used by many governments in the region to establish sexual orientation;
 Repeal laws criminalizing homosexual relations and transgender people, while actively prohibiting and combating discrimination based on SOGIESC;
 End restrictions and intimidation, including judicial harassment, exercised on associations and movements defending LGBTQI+ people;
 End and prohibit mutilations on intersex individuals, thereby underscoring the importance of guaranteeing the physical integrity and fundamental rights of all people, regardless of their sexual characteristics.

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