Will 2016 usher in a breakthrough in #LGBTQ human rights, equality, and justice in Tunisia?
Last year saw an unprecedented organized effort by the LGBTQ community in Tunisia, and the Tunisian Minister of Justice said it was time to repeal Article 230 of the Tunisian Penal Code which criminalizes male consensual sexual activity. This year started off with a remarkable solidarity campaign by Tunisian celebrities and civil society figures coming out to urge the cancellation of Article 230. We have definitely witnessed progress, but the battle is not yet won and may be more difficult than some had hoped.
Criminalizing consensual, intimate sexual relations between adults of the same sex is contrary to international law and standards. Furthermore, it is a fundamental way that discrimination and violence against LGBTQ people becomes legitimated. Also, LGBTQ people who experience violence often cannot turn to the police for help after they’ve been subjected to violence, for fear of prosecution or additional abuse.
The current campaign in Tunisia to reform the penal code and bring it into line with the majority of the global community, is also a hopeful sign for push for human rights culture in Tunisia, which fits with the legacy of the Tunisian Jasmine Revolution.
Tunisia wants to be a leader of human rights for the region. It has an important history with some significant advances especially in the area of gender equality, both before the Arab Spring and after it, when the Tunisian Parliament enshrined gender equality in the new constitution. However, to be a human rights leader, Tunisia’s parliament must repeal penal code article 230, which criminalizes sodomy and punishes it with three years in prison. In addition, as Human Rights Watch noted,
“Police should also cease forensic anal examinations of people suspected of homosexual acts. Such examinations are intrusive, invasive, and amount to cruel, inhuman, and degrading treatment that violates international law. State-sponsored forcible anal exams violate medical ethics and have been recognized as torture by the United Nations Committee Against Torture.”
Where does Tunisia stand in relation to the rest of the world? Today, consensual homosexual acts between adults are illegal in about 70 out of the 195 countries of the world (approximately 36%); in 40 of these, only male-male sex is outlawed.
At the UN level and among the major human rights organizations, it is understood that LGBTQ rights are human rights, and human rights belong to everyone, everywhere. While human rights case law on the issue is fairly settled, it was not settled all that long ago. People are surprised sometimes to learn that even the USA only decriminalized “sodomy” (non-procreative sex) between consenting adults of the same sex in 2011 when the Supreme Court decided Lawrence v Texas. Yes, 2011.
We should be appalled the penal code in Tunisia specifically discriminates against men who have sex with men (no other consensual sexual adult sodomy is criminalized) and against their rights to privacy. Yet we may have some hope: the trend overall is one of recognition of human rights and establishment of justice and equality. Tunisia may very well join majority of states in upholding human rights norms in this area, very soon.
- Some background on the struggle for human rights in Tunisa: http://www.al-monitor.com/pulse/originals/2015/12/tunisia-lgbt-community-fight-for-equal-rights.html
- 76 countries where homosexuality is still illegal: http://76crimes.com/76-countries-where-homosexuality-is-illegal/
- UN Fact Sheet on International Human Rights Law and Sexual Orientation: https://www.unfe.org/system/unfe-6-UN_Fact_Sheets_v6_-_International_Human_Rights_Law__and_Sexual_Orientation___Gender_Identity.pdf
- Issues in Discrimination via the Office of the High Commissioner for Human Rights: http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx
- Amnesty International’s LGBT Human Rights work: http://www.amnestyusa.org/our-work/issues/lgbt-rights/about-lgbt-human-rights
- OutRight International statement on progress at the UN Human Rights Council on LGBT Human Rights: https://www.outrightinternational.org/content/un-human-rights-council-votes-support-lgbt-rights
- UN Free and Equal: https://www.unfe.org/
- The Lawrence v. Texas case: https://www.law.cornell.edu/supct/html/02-102.ZO.html