In September 2015, a Tunisian court sentenced a 22-year-old student to one year in prison for homosexuality after he allegedly failed an anal exam that the public prosecutor’s department forced him to take. In response, LGBTQ activists in Tunisia argue that the country’s laws against homosexuality are not only a violation of privacy, but they also infringe on individual liberties. Article 230 of Tunisia’s Penal Code, established in 1913 by colonial French authorities, carries a maximum three-year prison sentence for acts of sodomy between homosexual persons and often involves an invasive medical test to determine whether the person has engaged in sexual activity. Although anyone has the right to refuse the test, Tunisian lawyers say refusal makes that person look “all the more guilty.” While a number of civil society organizations called for the law to be repealed, the Ministry of Justice rejected their appeal.
In 2011, when Tunisians ousted the repressive regime of Zine el Abidine Ben Ali, the LGBTQ community hoped for greater protection from the government. However, nearly four years later, activists argue that Article 230 allows for harassment, violence, and discrimination against LGBTQ persons. Yet, there is still hope that Tunisia’s newly liberalized coalition government will push forward reform efforts to decriminalize consensual same-sex relations. Minister of Justice Mohamed Salah Ben Aissa recently acknowledged to the media that Article 230 violates the right to privacy. He stated, “Article 230 is the problem. Since the adoption of the new constitution, authorities cannot violate individual liberties, privacy, or personal choices, even those concerning sex.” However, just a few weeks later, the government relieved Salah Ben Aissa from his duties as Justice Minister. Critics believe his dismissal was because of the stance he took on decriminalizing homosexuality.
Unfortunately, Tunisian homosexuals face particularly difficult challenges due to the country’s religious conservatism and cultural resistance. An Amnesty International investigation revealed that police arrested gay men in Tunisia simply because they appeared to look “effeminate” or were seen speaking to another man. Ahmed Ben Amour, vice president of Shams association, an LGBTQ activist group that fights for the decriminalization of homosexuality, reported that there are about 50 arrests a year in Tunisia and nearly 500 people being detained in prison for sodomy. Mobilization of LGBTQ groups, such as Shams, has not been easy. The Mufti of Tunisia, the body responsible for issuing Islamic legal opinions, has condemned the group’s existence saying it “undermines the values of Islam, morality of Muslins and principles of the former Tunisian society.”
Nonetheless, Tunisia’s constitution guarantees respect for human dignity, physical integrity, and the prohibition of physical and psychological torture, all of which conflict with Article 230. In fact, Article 6 of the constitution states that all citizens have the equal rights and the same duties under the law. In addition, critics argue Article 230 violates a number of international treaties ratified by Tunisia, including the African Charter on Human and People’s Rights, the Convention Against Torture, and the International Covenant on Civil and Political Rights. According to the World Medical Association and the UN Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, compulsory anal examinations are also contrary to medical ethics.
In response to the 22-year-old’s arrest, the global spotlight has begun to shed light on Tunisia’s struggle for equality. A number of international organizations, including Human Rights Watch, are standing in defense of LGBTQ Tunisians saying, “Tunisian authorities should immediately revoke the man’s prison term and release him.” While there is still no sign that Tunisia will abolish Article 230 any time soon, civil society groups hope that continued international pressure on Tunisia will eventually force reforms. Until then, activists describe “being gay in Tunisian is like living with a sword of Damocles over your head.”