Tunisia’s LGBTQ Community Looks Forward to Limited Legal Gains

Tunisia seems poised to shake off the anti-LGBTQ legacy of its French-imposed 1913 Penal Code after a presidential committee proposed decriminalizing same-sex relations.

Tunisia seems poised to shake off the anti-LGBTQ legacy of its French-imposed 1913 Penal Code after a presidential committee proposed decriminalizing same-sex relations.

Same-sex relations are currently illegal in some seventy countries around the world, including Tunisia, where such relations are punishable by up to three years in prison. But on Friday, Tunisia’s Individual Freedoms and Equality Committee (COLIBE), a committee established by President Beji Caid Essebsi last summer, recommended that Article 230 of the penal code, which explicitly forbids sodomy, be scrapped.

Should Essebsi accept COLIBE’s recommendation, Tunisia would become just the fifth nation in the Middle East and North Africa region to decriminalize same-sex relations. Same-sex relationships are not criminalized in Bahrain, Jordan, Lebanon or Iraq.

Across the MENA region, LGBTQ individuals have limited or extremely restricted rights. And while both Sunni and Shia interpretations of Islamic law prohibit sodomy, many scholars and historians have argued that the current anti-LGBTQ legal frameworks across the region are largely a colonial inheritance.

Of course, the Quran does include several references to same-sex relations; however, these references are much less pervasive than many would assume. In fact, there are only three verses that make explicit reference to such relations.

The first verse, 25:165-166, states, ‘Must you, unlike [other] people, lust after males and abandon the wives that God has created for you? You are exceeding all bounds.’

The two other references to same-sex relations are often taken together as a single unit of thought: ‘If any of your women commit a lewd act, call for witnesses from among you, then, if they testify to their guilt, keep the women at home until death comes to them or until God shows them another way. If two men commit a lewd act, punish them both; if they repent and mend their ways, leave them alone – God is always ready to accept repentance, He is full of mercy’ (4: 15-16).

In addition to these verses, an oft-cited hadith states: ‘If you find anyone doing as Lot’s people did [sodomy], kill the one who does it, and the one to whom it is done.’ (Sunan Abu Dawud 38:4447)

Despite this clear condemnation, many scholars and historians have argued that same-sex relationships were pervasive in the pre-colonial Muslim world. Not only that, there is a strong case to be made that, provided such relations remained discreet and respected established conventions, they were widely accepted. Marshall Hodgson argues this position in his history of Islam, claiming “Despite strong Sharia disapproval, the sexual relations of a mature man with a subordinate youth were so readily accepted in upper-class circles that there was often little or no effort to conceal their existence.”

According to Hodgson’s analysis – which has earned widespread support, at least amongst Western scholars of Islamic world – things began to change in the 19th and 20th centuries as the European empires began expanding across the region. The early colonial agents brought with them Victorian attitudes toward homosexuality and same-sex relations, and these attitudes were eventually adopted by the region’s Westernized elite. Interestingly, as attitudes toward homosexuality and same-sex relations became more tolerant in Europe, such orientations and practices were recast in much of the MENA region as symbolic of the Western decadence and corruption that threatened ‘authentic’ Middle Eastern cultures.

Whether or not one agrees with such an analysis, the fact remains that French or British colonial administrations established and enacted the existing anti-LGBTQ legal frameworks in many MENA nations. The French, who abrogated laws against same-sex relations and homosexuality in metropolitan France in 1791, imposed laws prohibiting “sodomy” (or, using gender-neutral language, same-sex relations writ large) in Algeria, Lebanon, Morocco and Tunisia during the late 1800s and the early 1900s. In 1861, the Indian Penal Code (which, despite its name, was created by the British colonial administration) was exported to the British protectorates – including Bahrain, Oman, Qatar, the United Arab Emirates and parts of modern-day Yemen – effectively criminalizing same-sex relations and homosexuality across much of the Middle East.

Although a few MENA nations have dismantled and replaced their colonial-era penal codes, nearly all Arabic-speaking countries across the region criminalize one or more forms of consensual adult sexual relations. Extramarital sex is prohibited in Bahrain, Egypt, Jordan, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Sudan, Syria, the United Arab Emirates and Yemen. In countries where same-sex marriage is illegal, this prohibition also means the effective banning of same-sex relations.

Same-sex relations are explicitly prohibited for men and women in Algeria, Mauritania, Morocco, Oman, Syria, Tunisia, Yemen and parts of Palestine. Consensual sex between men is illegal in Kuwait and Sudan. Lebanon and parts of the United Arab Emirates prohibit what they term “unnatural” sex. Only Iraq and Jordan have no laws explicitly criminalizing consensual same-sex relations.

In addition, several MENA nations arrest and prosecute individuals engaging in same-sex relations under the cover of vaguely-worded “morality” laws – Egypt is especially notorious for this. And three Arab nations – Kuwait, Oman and the United Arab Emirates – go so far as to explicitly criminalize gender nonconformity.

According to Tunisian law professor Sana Ben Achour, the criminalization of same-sex relations in Tunisia began with the passage of the French-imposed 1913 Penal Code during the protectorate era. Earlier legal frameworks and pre-existing penal codes, such as the Qanun al Jinayat wal Akham al Urfya, which was promulgated under the Husainid dynasty in the mid-19th century, did not include any provisions criminalizing same-sex relations or homosexuality.

However, even after independence, Tunisia has retained the 1913 Penal Code – although it was substantially revised in 1964. It is Article 230 of this code that mandates a maximum sentence of three years in prison for private acts of sodomy between consenting adults. In addition, Article 226 of the code bans “outrages against public decency” and has been used to prosecute Tunisian citizens for a range of behaviors, including breaking the Ramadan fast, cross-dressing or simply appearing “too feminine.”

Tunisia’s reputation for progressivism and individual liberties has long been belied by its official stance on same-sex relations and homosexuality. For example, when the United Nations’ General Assembly issued their 2008 statement that confirmed that international human rights protections include sexual orientation and gender identity, condemned human rights abuses against LGBTQ individuals and called for the decriminalization of same-sex relations worldwide, Tunisia co-sponsored the opposition to the assembly’s resolution.

In 2012, the United Nations Human Rights Committee renewed the call to decriminalize same-sex relations. The call was vehemently rejected by Tunisia’s then-Human Rights Minister Samir Dilou, who claimed that the concept of “sexual orientation” was “specific to the West” (Dilou has asserted that homosexuality is an illness on several occasions) and, therefore, not applicable in Tunisia, which is an Arab Muslim country.

Furthermore, Tunisia was one of the last countries in the world to stop making use of forced “anal examinations” as proof of male same-sex sexual activity. Such examinations have been thoroughly discredited by medical professionals and denounced as torture and rape by the Physicians for Human Rights association. The United Nations mounted pressure to cease and desist the exams by issuing a call in June 2016 demanding that Tunisia stop the practice. Tunisia did not comply.

The following June, a widely mediatized case involving a 16-year-old boy who was sentenced to four months in jail after refusing to submit to an anal probe – the refusal being considered as an admission of guilt—led to international outrage. Finally, in September 2017, Tunisia’s current Minister of Human Rights, Mehdi Ben Gharbia, announced that “these exams can no longer be imposed by force, physical or moral, or without the consent of the person concerned.” However, many activists say the exams continue to be performed.

However, Tunisia’s official stance on homosexuality seems set to change. Following the 2011 overthrow of Ben Ali’s repressive regime, Tunisia’s first online LGBTQ magazine, called Gayday, appeared. Published in French and English, Gayday defined its missions as seeking “to satisfy the needs of the LGBT community in the MENA region and beyond, help them feel comfortable about their sexuality and provide well-targeted topics that matter to them by them.” The magazine’s email and social media accounts were hacked in 2012 but it maintains a limited online presence to this day.

More recently, Shams Association (Arabic for “sun”) became the country’s first officially recognized LGBTQ organization. Established in 2015, Shams offers legal aid, medical assistance for victims of hate crimes, and emergency shelter. The association weathered a government-led shut-down attempt in 2016 – officials accused Shams of failing to follow the tenants of the NGO law and of obscuring its support of homosexual rights in its statute, but Shams took the case to court and won – and went on to found the Arab world’s first LGBTQ radio station in December 2017.

Also of note was this winter’s Mawjoudin Queer Film Festival, which took place in Tunis over four days in January 2018. The Maghreb’s first LGBTQ film festival, Mawjoudin sought to promote North African queer culture and focused on raising the visibility of non-normative gender identities and sexual orientations. Even the festival’s organizing committee seemed surprised by Mawjoudin’s resounding success: Over 700 people attended and not a single instance of harassment or police intimidation was reported during the festival.

Now, thanks to last Friday’s COLIBE report, these grassroots initiatives are on the verge of receiving official sanction in the form of the decriminalization of same-sex relations. The committee, which is comprised of some 30 non-governmental organizations along with an array of legislators, scholars and human rights advocates, was created last summer by President Essebsi. The committee was tasked with drafting proposed reforms to Tunisia’s existing corpus of laws in order to ensure that the country’s legal framework conforms to its post-Arab Spring constitution, which was drafted in 2014. Notably, the new constitution enshrines equality before the law, the right to privacy and the protection of human dignity — all of which activists have claimed are violated by Article 230 of the 1913 Penal Code.

COLIBE’s 200-page-long report recommends a series of reforms, including the abolition of the death penalty, expanding women’s rights, dismantling patrilineal citizenship and inheritance schemes and the abrogation of Article 230 of the 1913 Penal Code.

Arguing that some of Tunisia’s existing laws “pose an assault on the sanctity of individuals’ privacy, including their sexual relations,” the report recommends the outright repeal of Article 230.

The report further justifies this recommendation by insisting that “state and society have nothing to do with the sexual life amongst adults … sexual orientations and choices of individuals are essential to private life. Therefore, the commission recommends canceling [Article 230], since it violates the self-evident private life, and because it has brought criticism to the Republic of Tunisia from international human rights bodies.”

However, should Essebsi’s government not be willing to simply abrogate the offending article, COLIBE is prepared with a possibly more palatable alternative: reducing the penalty from three years in prison to a cash fine of 500 dinars (around $200) and no risk of jail time.

While COLIBE’s recommendations are laudable, it is worth recalling that Tunisia’s minimum wage is just 290 dinars per month for a 40-hour workweek, raising the question of who, exactly, can afford individual liberties and why this should even be a question in the first place.