Spring for LGBTQ rights in Tunisia

Suraj Girijashanker is a David W. Leebron Fellow at the Arab Foundation for Freedoms and Equality and OutRight Action International.

A series of ground-breaking proposals for legislative reform impacting Tunisia’s LGBTQ community by the government-appointed Individual Freedoms and Equality Committee (COLIBE) are likely to be stifled by political inaction in an election year. However, measures of LGBTQ progress extend beyond legislative reform in Tunisia, with COLIBE’s recommendations being one of several indications of the country’s increasingly visible and effective LGBTQ civil society.

In June 2018, COLIBE made a set of wide-reaching recommendations for legislative reform in relation to individual freedoms and gender equality, designed to ensure domestic laws are compatible with provisions of the 2014 Tunisian Constitution. The Committee recommended abolishing Article 230 of the Tunisian penal code, which criminalizes same-sex sexual relations. Anticipating political resistance, the Committee also provided a second alternative recommendation of replacing the three-year prison sentence under Article 230 with a fine not exceeding 500 dinars. Additionally, the Committee proposed eradicating offenses relating to   “public indecency” and “public offense to morals”, which have also been used to target LGBTQ people and adopting a ban on anal examinations. Anal examinations, which amount to torture and have been widely discredited by medical professionals are used by Tunisian authorities as evidence of sodomy in convictions. COLIBE’s other recommendations relating to gender equality and individual liberties focus on a range of areas from equal inheritance between men and women to abolishing the death penalty.

However, with Tunisian parliamentary and presidential elections due to take place later this year, the only proposal which has had any traction from President Beji Caid Essebsi is related to equal inheritance. If the contentious debate surrounding reform is anything to go by, it may be the only recommendation which receives support from the executive in the near future. In August 2018, President Essebsi vowed to amend inheritance provisions in the personal status code derived from Sharia law to ensure inheritance equality. Despite the proposal being a compromise which provides families the option to follow the current law if they wish, it has been met with considerable opposition. Notably, two weeks after the announcement the Muslim Democrat Ennahda party, a coalition partner of the President’s Nidaa Tounes party (which around 30% of seats in the Assembly of Representatives), issued a statement opposing the proposal, stating that in contradicted “peremptory texts in the Quran and Sunna.”

The President’s proposal is the latest in a series of gender equality reforms. In 2017, Tunisia passed a national law to address violence against women and girls and overturned a law which prohibited women from marrying non-Muslims. While previous reforms gained support across the major political parties, it appears that inheritance equality is likely to be the red line for Ennahda. This has led to scepticism if the President will be willing to push for further legal reform specifically in relation to Tunisia’s LGBTQ community. COLIBE’s president, Bochra Belhaj Hmdia has stated that opponents have mischaracterized proposals for decriminalization of same-sex relations as being supportive of gay marriage. Notably in 2015 President Essesbi also stated on Egyptian television that he would oppose any attempt to repeal Article 230.

Since 2015 however there has been considerable progress for LGBTQ Tunisians as a result of hard-fought battles and innovative strategies from local LGBTQ organizations. In post-revolution Tunisia, several distinct LGBTQ organizations emerged and obtained registration as part of a burgeoning civil society. In 2016, several LGBTQ organizations joined a collective of 35 organizations - the Civil Collective for Individual Liberties. LGBTQ rights is part of the Collective’s agenda, which activists state has contributed to increased security, credibility, and visibility for LGBTQ organizations. Key successes for the LGBTQ movement range from the effective use United Nations human rights mechanisms to apply pressure on the Tunisian government, to utilizing art as a means changing mindsets of the broader public.

Tunisian organizations, including five LGBTQ collective members submitted a civil society shadow report focusing specifically on LGBTQ people prior to Tunisia’s May 2017 Universal Periodic Review session. The Tunisian delegation accepted two recommendations from the session calling for the state to combat discrimination and violence against LGBTQ people and abolish the practice of forced anal examinations. Notably, the Tunisian Minister of Human Rights in his closing remarks claimed that discrimination on the basis of sexual orientation contravened the Tunisian constitution, and cases of violence in this context were prosecutable.

Legal and policy advocacy strategies have been complemented by artistic initiatives. Since 2015, Tunisian feminist organization Chouf has been organizing Chouftouhonna, a feminist art festival in Tunis with strong LGBTQ themes. The festival, which is open to the public, has been expanding yearly; the latest edition attracted the work of approximately 130 artists from around the world.   More recently, LGBTQ organization Mawjoudin launched a queer film festival in January 2018. The festival showed 12 films in Tunis, including Tunisian and regional productions.

Tunisian activists however note that many challenges remain. In addition to the continued use of discriminatory laws and anal testing, hate crimes and societal discrimination remain concerns. These challenges as well as successes and strategies used by activists to achieve legal and social progress by activists in Tunisia, Lebanon, Jordan and Morocco are documented in a recent report by the Arab Foundation for Freedoms and Equality and OutRight Action International –  “Activism and Resilience: LGBTQ Progress in the Arabic-speaking States in the Middle East and North Africa Region”.

With many Tunisian LGBTQ organizations having participated in dialogue with COLIBE, it is clear that they have played a significant role in promoting the debate on LGBTQ legal reform. Whether or not the Tunisian executive chooses to pursue COLIBE’s recommendations, it is unlikely that LGBTQ organizations will allow them to be sidelined quietly.