The arrests of 77 people on homosexuality charges in Egypt since October has led to a discussion about how the Egyptian legal system justifies the imprisonment of LGBT people without a law that specifically mentions homosexual activity.
Unfortunately, that discussion has not been among Egyptian politicians who could change the country’s anti-gay laws and stop the arrests. The discussion has been in the comments section of this blog. Still, it provides some clarity about what is going on.
In an article about the arrests, activist and commentator Scott Long, who has a long history of involvement in Egyptian LGBT issues, stated:
“The crackdown mainly targets the people in Egypt’s diffuse and fragile LGBT communities who are most vulnerable and visible, those who defy gender norms.
“This is despite the fact that, while Egyptian law does criminalize male homosexual conduct, it says nothing about ‘crossdressing’ or ‘effeminacy.’ “
In response to a related article in this blog, a commenter challenged Long’s statement, alleging that the law criminalizes debauchery [in Arabic, “fugur”] rather than homosexuality:
“This article incorrectly states that male homosexuality is criminalised by law, which is not true. Homosexuals get arrested under a ‘debauchery law’ which has very vague guidelines that gives law enforcers the ability to do so.”
Similarly, last year’s ILGA report on State-Sponsored Homophobia stated about Egyptian laws, “Sexual relations between consenting adult persons of the same sex in private are not prohibited as such. However … several articles of the Penal Code have been used to imprison gay men in recent years.”
Long disagrees, stating the use of the term “fugur” in Egypt is similar to many other countries’ use of English legal terms that are understood to refer to homosexual intercourse but do not specifically describe it. He also discusses a 1975 Egyptian court decision that authorized the current use of the law against “fugur.”
Here are Long’s slightly edited comments:
There is plenty of dispute in Egypt about whether “homosexuality” is “criminalized” or not. The term “fugur” is of course vague, but so are “sodomy” and “buggery” and “unnatural acts” in the English legal tradition. (“Sodomy” originally could refer to sex between humans and animals, or between Christians and Jews or Muslims. In many jurisdictions it still includes bestiality and anal sex between a man and a woman.) Nonetheless, there is no question that these terms have come to include homosexual conduct between adult males, and to criminalize it.
“Fugur” is a very comparable term. It meant a lot of different things when first introduced into Egyptian law (from French law, where it usually meant moral corruption of another person). However, a widely cited Cassation Court decision of 1975 clearly established that it criminalized consensual [and] non-consensual homosexual conduct between adult males. This decision is the standing interpretation of “Fugur” in Egyptian law. So I don’t see how the term is any vaguer than “sodomy”; it is, in fact, quite comparable as a term of art. In any case, there is no question that as long as that Cassation Court decision stands, homosexual conduct between men is a criminal act.
The ILGA report is wrong. They didn’t read the relevant court decisions, and they seemed to have the notion that if an Arabic law didn’t say “homosexuality” (for which, of course, there’s no exact synonym in Arabic) it couldn’t be said to criminalize it. This is a misconception which certainly didn’t govern their approach to “sodomy” or “buggery” laws.
The notion that the law (no. 10/1961, actually passed in 1951) doesn’t “really” criminalize homosexual conduct stems from a strategic decision that Egyptian activists made in 2003-2004. The idea was that a case could eventually be taken to the Cassation Court, which could be asked to reverse its decision of 1975 and find that only commercial sex was criminalized under the law. I wasn’t crazy about this strategy, since it would have sold sex workers down the river. However, it’s a moot point now. Given the present composition of the Cassation Court, and the erosion of judicial independence in Egypt, there’s almost no chance the Court would reverse itself. I don’t see the point of carrying on the pretense that “fugur” doesn’t “really” include male homosexual conduct.
The “guidelines” around “fugur” and its application to male homosexual conduct are not vague. They are clear, and they were set out in the Cassation Court ruling mentioned above. The exact citation is Cassation Court case no. 683/Judicial Year 45, May 12, 1975.
Editor’s note: Further information about the history of Egypt’s law on “debauchery” is included in Long’s additional comment below.