Why does Tunisia Still Criminalize Homosexuality?

For LGBTIQ Tunisians, abusive police-stops and arbitrary arrests at the hands of law enforcement are commonplace, while anti-gay hate speech and incitement to homophobic violence appear frequently in Tunisian media. After receiving several complaints, the Tunisian Independent High Authority for Audiovisual Communication (HAICA) – in what can be considered the first official reaction from a public institution to violence against the LGBTIQ community – issued a warning against a TV station for homophobic statements in October, 2015. But the lack of potential legal penalties, coupled with the fact that many officials and politicians, including members of the Tunisian parliament, contribute to the hostile rhetoric against the LGBTIQ community, has led to the wide-spread normalization of homophobic hate speech across the country.

In a climate of general impunity, an increasing number of anti-gay hate crimes have been reported in local and international media. Just last September, journalists covered two murders of gay men in the regions of Tunis and Kef, respectively. But a significant proportion of anti-gay violence goes unreported. As Badr Baabou, President of the Tunisian LGBTIQ association DAMJ, stated recently: “Crimes that do not appear in the media are even more numerous and often more violent.” Moreover, Tunisian law leaves victims of hate crimes, including crimes perpetrated against the LGBTIQ community, with limited options. While attacks can be punished under “assault” or “homicide,” the Tunisian penal code contains no provision specifically defining, or criminalizing, hate crimes.

The Tunisian Sodomy Law

Government repression of the LGBTIQ community is generally justified under Article 230 of the Tunisian Penal Code, which punishes sexual acts between two consenting adults of the same sex by up three years of imprisonment. More specifically, the French-language version of the law criminalizes “sodomy,” while the Arabic-language version prohibits both “male and female” homosexuality. In their advocacy efforts aimed at repealing Article 230, LGBTIQ activists often highlight the fact that the Tunisian sodomy law is a relic of the colonial era. As noted by Tunisian Law Professor Sana Ben Achour, the criminalization of homosexuality in Tunisia began with the passage of 1913 Penal Code, imposed by colonial authorities during the French protectorate.  Previous iterations of the Tunisian penal code, such as the Qanun Al Jinayat Wal Ahkam Al Urfya (قانون الجنايات والأحكام العرفية), issued in 1860’s under the Husainid dynasty, included no provisions criminalizing homosexuality.

In a report submitted to the UN Human Rights Council in the lead up to Tunisia’s 2017 Universal Periodic Review (UPR), five Tunisian LGBTIQ groups (Mawjoudine, Damj, Chouf, Kelmty and Shams), working with the support of 14 national and international NGOs, meticulously analyzed the unconstitutionality of Article 230 under Tunisia’s 2014 constitution. According to the report, Article 230 violates at least three central principles of the Tunisian Constitution:

• Article 230 constitutes discrimination on the grounds of sexual orientation and gender identity, in violation of “equality before the law” as enshrined by Article 21 of the Constitution.
• Enforcement of Article 230 necessarily includes infringement on personal privacy, in violation of the “right to privacy” as enshrined by Article 24 of the Constitution.
• Conducting anal examinations as “proof” of homosexual behavior constitutes cruel, degrading and inhuman treatment and potentially torture, a violation of the protection of human dignity and the prohibition of torture as enshrined by Article 23 of the Constitution.

In addition to Article 230, Tunisian authorities rely on several other provisions of the Penal Code to justify anti-LGBTIQ repression, including Article 226a (criminalizing “offences against public decency”), Article 228 (criminalizing “indecent assault), and Article 231 (criminalizing “solicitation” and “prostitution”).

Tunisian LGBTIQ activists: Shining Light on the Struggle for Liberty, Equality and Dignity

In spite of numerous defamatory campaigns and daily acts of intimidation, Tunisian LGBTIQ advocates and human rights activists show little signs of backing down. Recent efforts include national and international advocacy campaigns directed at Tunisian government officials and foreign diplomats,  capacity-building and trainings for activists, research and field work conducted across the country, and frequent engagement with Tunisian and international media. Activists won an important symbolic victory at Tunisia’s Universal Periodic Review (UPR) in May 2017, when, for the first time, a Tunisian government representative officially recognized discrimination on the basis of sexual orientation: “Concerning discrimination on the basis of sexual orientation, under the constitution all forms of discrimination, hatred, and incitation to hatred are unconstitutional. Any person of any sexual orientation has full rights… Any act of aggression committed against any person on the basis of his sexual orientation is criminal and can be prosecuted." Though the government representative made no mention of repealing Article 230, his admission only increased the determination of LGBTIQ groups to push for broad legislative change.

In spite of the representative’s UPR comments, there is little chance that Article 230 will disappear anytime soon. During an interview on Egyptian television in June 2015, Tunisian President Béji Caid Essebsi firmly defended the Tunisian sodomy law, assuring his interlocutor that Article 230 would not be repealed. However, two years after the interview, President Essebsi announced the establishment of a committee tasked with guaranteeing individual rights and gender equality in August 2017. Chaired by the progressive MP and prominent Tunisian feminist Bochra Bel Hadj Hamida, the Committee has been given six months to prepare an exhaustive report on the situation of individual liberties and gender equality in Tunisia and to propose corresponding legal reforms. Article 230 is high on the agenda.

Few would argue that the government’s UPR admission, or the formation of a new committee centered on individual liberties and gender equality, are signs of a major legislative overhaul regarding LGBTIQ rights in Tunisia. But for the country’s growing LGBTIQ movement, small victories are a critical source of inspiration. And in spite of discriminatory laws and a constant threat of violence, their voices will not be silenced.