History edit
Background edit
From the end of the 18th century to the beginning of the 20th century, despite facing ongoing stigmatization, gay men managed to have social roles in Tunisia similar to those in the rest of the Arab Muslim world. Specifically, they served as intermediaries between masculine and feminine spaces in wedding celebrations, were invited to men's homes in the presence of their wives, and were permitted to enter women's private spaces in a similar manner to blind people.[1] Homosexual relationships were common in the Tunisian royal court and among the aristocratic families, particularly during the reign of the Hafsid dynasty—1229–1574—when, according to documentation, large numbers of "effeminate" men offered their companionship to court men, presenting themselves as singers and dancers.[2] During the rule of the Husainid dynasty, Bey Muhammad III as-Sadiq was open about his intimate relationship with his vizier Mustapha Ben Ismaïl.[3]
For the middle and poor classes, meetings took place in all possible private and public places, such as bathhouses, barber shops, zawiyas, but especially places accessible to travelers such as fondouks, hammams, and pensions.[2] The traveler Jacques Philippe Laugier de Tassy described in his diary in 1725 that "sodomy is widely practiced among the Turks of Algiers, the Deys, the Beys and the principals give the example".[2] It should be noted that sodomy was prohibited in Tunisian society irrespective of whether it constituted part of homosexual or heterosexual activities. Indeed, for centuries it constituted one of the rare instances where Tunisian Muslim women had the right to request a divorce. According to popular culture, when a woman wanted to separate from a husband that had committed sodomy with her, she had to present herself to the qadi / judge and squat in his presence while putting her shoes on backwards; this meant that the husband was seeing her in a reverse manner.[2]
Criminalization of homosexuality edit
Before 1913 edit
Homosexuality, whether male or female, had always been considered a taboo that Tunisians avoided discussing openly.[4] Despite this stigmatization, it has been argued that it was not homosexuality that was actively sought out and condemned by institutions and authorities, but the absence of consent between individuals in homosexual encounters.[4] Historian Abdelhamid Larguèche argues in favour of this hypothesis, pointing out that among all the arrests which took place in Tunis between 1861 and 1865, only 62 of them were for "sodomy", and all of them were "rape cases[;] often involving minors".[4]
For Tunisian Muslims, concerning regulation, homosexuality was governed in accordance to sharia law, with the judges in the country's different cities applying either the Maliki school (primarily used for native Tunisians) or the Hanafi school (primarily used for Tunisians of Turkish origin) of jurisprudence in their decisions. In both schools of thought, homosexuality was theoretically punished because it was classified as a form of disobedience to Allah's commandments (fasiq), but not as an act of apostasy (kafir).[5]
In the Malikite school, homosexuality was punishable by stoning. One of the most important documentations of this rule in Tunisian Muslim society dates back to the 14th century in Handbook of Sidi Khalil, a book written by Egyptian jurist Khalil ibn Ishaq al-Jundi, and which is addressed to Muslims of the Malikite rite in general, but especially those of Africa.[6] In the 43rd chapter entitled "Illicit Cohabitation, that is to say adultery, fornication and implicitly sodomy", the author describes illicit sexual acts which must be punished; sodomy is described as the "intentional act of an adult male, endowed with reason, who introduces... the head of the penis (or a part of the penis of equal length to the head) into the body parts of a person on which he has no legal right as recognized by the doctors of the law. [...] Pederasty or sodomy is the equivalent of illicit cohabitation and incurs the legal penalty [of] stoning".[6] However, this type of punishment remained very theoretical and difficult to apply in real life as, according to Maliki jurisprudence, the act of sodomy had to be proven either through the confession of the accused four times and at four different times in the presence of a judge, or through the testimonies of four adult Muslim men, that were free and honest, and witnessed the same act, at the same time, and from the same place.[7]
For the followers of the Hanafi school, the situation concerning sodomy was much more flexible and leniant, with judges having the freedom to choose between prison and flogging as punishment for those accused of sodomy. This was based on the declaration of Abu Hanifa, founder of this school, who stated that "if Allah had wanted to kill the luti [he who committed sodomy, liwat], he would have specified it".[7]
After 1913 edit
Article 230, criminalizing homosexuality, first appeared in the Penal Code of 1913, which was inspired by the French Penal Code of 1810 in terms of both "structure" and "values"; despite this, the French Penal Code did not criminalizing sodomy.[8] This Article, among others, was the work of a commission created for the codification of Tunisian laws, by the Resident-General René Millet, in September 1896.[9] This commission was made up of eight members, which by 1912 consisted of six Frenchmen and two Tunisians; Hanafi judge Mahmoud Ben Mahmoud, and Maliki judge Mohamed Kassar.[10]
According to research in the national archives by Ramy Khouili and Daniel Levine-Spound, in the Preliminary Draft of the Tunisian Penal Code, drafted and completed in 1911, no reference is made to sodomy in any of the printed Articles.[11] However, a sanction against sodomy does appear in the form of a handwritten note, in the margins of the section "Offenses against Decency", represented as Article 274; the note read that "whoever is convicted of sodomy is punishable by three years in prison, without prejudice to longer penalties incurred based on the cases and distinctions outlined in the preceding articles".[11] Unlike several other proposals added, the one concerning Article 274 is not accompanied by a signature or explanation that could help identify the person who proposed it.[12] Moreover, although the 1911 Preliminary Draft often included footnotes referencing the legal sources of specific Articles, as Article 274 was a handwritten note, it lacked such a legal source.[13]
In the 1912 version of the Preliminary Draft of the Penal Code, Article 274 became Article 212, due to the "Offenses against Decency" section appearing earlier in newer draft, having been typed rather than handwritten.[14] In the final version of Penal Code from 1913, due to some reorganization, Article 274 became Article 230, with few changes, criminalizing homosexuality with up to three year of imprisonment. In the Arabic version of the text, published shortly after the French version, "sodomy" was replaced with "Liwat" (male homosexuality) and "El Mousahaka" (female homosexuality).[14]
Legal status edit
Same-sex sexual activity edit
The French version of Article 230 the 1913 Penal Code stipulates that acts of "sodomy" committed between consenting adults in private is to be punished with up the three years in prison.[15] Conversely, the Arabic version targets "male and female homosexuality".[16]
In 2019, the Civil Collective for Individual Liberties (CCLI), a collective of 40 Tunisian human rights activist associations, published a census according to which at least 120 trials based on Article 230 took place in 2018 alone.[17] People suspected of sodomy must undergo an anal test by a forensic doctor in order to confirm or refute the act of penetration; said test is considered by the Tunisian and international activist community as a form of torture.[18] The use of the test is not systematic and anyone accused of homosexuality can refuse to be examined.[19] However, for much of Tunisia's LGBT+ community, access to this information and much more about their rights is limited; something that Tunisian NGOs are trying to curb through various training and media campaigns they organize.[20] Furthermore, the refusal of the anal test is often retained as evidence of homosexual activy having taken place and leading to prison sentences.[19]
Apart from Article 230, Article 226, concerned with "indecent behavior in public",[21] is also used to criminalize any expression of affection between homosexual lovers in public and to target members of the LGBT community, including transgender individuals.[22]
Transgender identity edit
Summary table edit
| Yes/No | Notes | |
|---|---|---|
| Same-sex sexual activity | ||
| Same-sex sexual activity legal |  |
Penalty: Up to 3 years imprisonment (Legalization proposed) |
| Equal age of consent | |
|
| Discrimination laws | ||
| Anti-discrimination laws in employment only | |
|
| Anti-discrimination laws in the provision of goods and services | |
|
| Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) | |
|
| Same-sex unions | ||
| Same-sex marriages | |
|
| Civil partnerships | |
|
| Recognition of same-sex couples | |
|
| Adoption and children | ||
| Adoption by individuals | |
|
| Stepchild adoption by same-sex couples | |
|
| Joint adoption by same-sex couples | |
|
| Commercial surrogacy for gay male couples | |
|
| Access to IVF for lesbians | |
|
| Other | ||
| LGBT people allowed to serve openly in the military |  |
|
| Right to change legal gender | |
|
| MSMs allowed to donate blood |  |
|
References edit
- ^ Crémeaux 2013, p. 272.
- ^ a b c d Larguèche & Larguèche 2005, pp. 63–65.
- ^ Ben Saad 2019, pp. 38–39.
- ^ a b c Khouili & Levine-Spound 2019, p. 14.
- ^ Khouili & Levine-Spound 2019, p. 39-40.
- ^ a b Khouili & Levine-Spound 2019, p. 37.
- ^ a b Khouili & Levine-Spound 2019, p. 40.
- ^ Khouili & Levine-Spound 2019, p. 9.
- ^ Khouili & Levine-Spound 2019, p. 21.
- ^ Khouili & Levine-Spound 2019, p. 23 & 35.
- ^ a b Khouili & Levine-Spound 2019, p. 24.
- ^ Khouili & Levine-Spound 2019, pp. 24–25.
- ^ Khouili & Levine-Spound 2019, pp. 25–26.
- ^ a b Khouili & Levine-Spound 2019, p. 26.
- ^ "French Penal Code". Archived from the original on October 6, 2022. Retrieved March 24, 2024.
- ^ Andraca, Robin (May 4, 2018). "L'homosexualité pourra-t-elle être dépénalisée si des progressistes arrivent au pouvoir après les municipales tunisiennes?" [Could homosexuality be decriminalized if progressives come to power after the Tunisian municipal elections?]. Libération (in French). Archived from the original on September 9, 2021. Retrieved March 24, 2024.
- ^ CCLI 2019, p. 12.
- ^ Virgili 2021, pp. 140–141.
- ^ a b "Tunisia: Doctors Oppose 'Anal Test' for Homosexuality". Human Rights Watch. April 12, 2017. Archived from the original on February 4, 2024. Retrieved March 24, 2024.
- ^ "Droits des homosexuels en Tunisie: une avancée lente mais réelle" [Gay rights in Tunisia: slow but real progress]. 1538 Méditerranée (in French). July 31, 2019. Archived from the original on August 8, 2022. Retrieved March 24, 2024.
- ^ "Tunisia: 3-Year Sentence for Homosexuality". Human Rights Watch. December 16, 2015. Archived from the original on September 22, 2023. Retrieved March 25, 2024.
- ^ "Tunisia's New Gay Rights Fight". HuffPost. BuzzFeed. December 11, 2014. Archived from the original on August 19, 2023. Retrieved March 25, 2024.
Bibliography edit
- Ben Saad, Nizar (2019). Lella Kmar, destin tourmenté d'une nymphe du sérail [Lella Kmar, tormented destiny of a nymph of the seraglio] (in French). Tunis, Tunisia: KA Editions. ISBN 978-9938-913-23-1.
- Crémeaux, Anne (2013). Homosexualities in Africa [Homosexualities in Africa] (in French). Nyons, France: Africultures. ISBN 978-2-336-29943-3. Retrieved March 24, 2024.
- Khouili, Ramy; Levine-Spound, Daniel (March 2019). Article 230: A History of the Criminalization of Homosexuality in Tunisia (PDF). Program on Law and Society in the Muslim World. ISBN 9789973982186. Archived (PDF) from the original on October 24, 2023. Retrieved March 24, 2024.
- Larguèche, Dalenda; Larguèche, Abdelhamid (2005). Marginales en terre d’Islam [Marginals in the land of Islam] (in French). Tunis, Tunisia: Cérès Editions. ISBN 9973-700-99-6.
- Nouisser, Habib (2018). Sex Change in Tunisia: When Law confiscates identities (PDF). Tunis, Tunisia: Tunisian Association for the Defense of Individual Liberties. Archived (PDF) from the original on November 30, 2022. Retrieved March 25, 2024.
- State of Individual Liberties 2018: Masks Off! (PDF). Civil Collective for Individual Liberties. March 2019. Archived (PDF) from the original on May 17, 2022. Retrieved March 24, 2024.
- Virgili, Tommaso (2021). Islam, Constitutional Law and Human Rights: Sexual Minorities And Freethinkers In Egypt And Tunisia. Routledge. ISBN 978-0-429-53509-3.