Website tracks legal rights for trans people in Middle East and North Africa
MENA Trans Archive collects information on legal rights for trans people across the region
The Cairo 52 Legal Research Institute has unveiled the MENA Trans Archive, a new, free online archive focused on legal and sharia-law information for trans people living in the Middle East and North Africa.
The MENA Trans Archive is designed to empower and inform not only activists and researchers but also policymakers and the general public. It includes a wealth of resources such as case laws, legislation reviews, healthcare policies, Islamic religious edicts, and detailed country profiles for each of the Arab-majority countries of the Middle East and North Africa.
As examples of what the archive offers, copies of the entries for Palestine and Morocco are below:
Palestinian Territories (West Bank and Gaza)
Summary:
Gaza and the West Bank have distinct Penal Codes, each with its own set of laws. While transgender identities are not explicitly criminalized in either region, laws against homosexuality are seldom enforced. However, access to gender affirming healthcare is severely limited, mainly due to the destruction of hospitals in Gaza and the ongoing occupation of the remaining Palestinian territories. Israel’s claims of providing such care for transgender Palestinians are disputed in terms of their scope and effectiveness. Additionally, legal gender recognition is a complex issue due to the presence of multiple legal jurisdictions, leaving transgender individuals without a clear process to amend their official documents. The portrayal of Israel as a safe haven for LGBTQ+ Palestinians is criticized as a form of pinkwashing, given that the occupation actively marginalizes Palestinians as a whole, including those who identify as queer or transgender. These individuals continue to face oppression under the occupation.
Criminalization:
De facto: Gaza and the West Bank have different Penal Codes.
In Gaza, the British Mandate Criminal Code Ordinance, No. 74 of 1936 remains in effect. Although it does not explicitly address transgender individuals or non-normative gender identities and expressions, transgender people can potentially face legal action under provisions safeguarding public morals or sodomy laws.
- Article 152, Section 2:
Any person who:
- has carnal knowledge of another person outside of the natural order or
- has carnal knowledge of an animal or
- permits (he or she) a male to have carnal knowledge of himself or herself outside the natural order
Is considered to have committed a felony and is punished with 10 years of jail.
However, there is limited evidence of these laws being actively enforced. In the West Bank, the Jordanian Penal Code of 1951, as amended in 1960, is still applicable. This code does not criminalize sexual acts between individuals of the same sex. It is important to note that under “enclave law,” Israeli military ordinances have been implemented in the West Bank, thereby extending their jurisdiction to all Palestinians residing in the region.
Enforcement:
We have not been able to identify any instances in which transgender individuals have been arrested, detained, or subjected to legal proceedings due to their gender identity and expression, even when considering the aforementioned articles.
Legal gender recognition:
The Palestinian personal status law currently enforced in the West Bank lacks provisions for amending or modifying personal status information, including changes to the name or gender of an individual. It is important to note that this law is not applicable in Gaza, as it falls under the jurisdiction of the Egyptian Law on Family Rights. Additionally, individuals residing in territories under Israeli occupation are subject to Israeli law. The presence of multiple legal jurisdictions in the region not only complicates the tracking of gender recognition availability and legality, but also results in the absence of a clear and standardized process for transgender individuals to rectify their legal documents in accordance with their gender identity.
Case law in Legal Gender Recognition:
We have encountered difficulties in both locating and accessing instances wherein a transgender individual pursued legal gender recognition in the Occupied Palestinian Territories.
Gender affirming healthcare:
There are few reports on the availability of gender-affirming healthcare for transgender people in Palestine. While relevant healthcare was previously accessible for intersex individuals in Gaza, it has become unattainable, along with other forms of healthcare, due to the destruction of all hospitals in the region and the ongoing and oppressive occupation. While such services are available inside Israel, few transgender Palestinians can access those services inside Israel due to the restrictions on freedom of movement imposed by Israel in the Occupied Palestinian Territories. Thus, such cases are not representative of the prevailing situation, as this form of healthcare remains inaccessible for many transgender individuals inside the Occupied Palestinian Territories.
Fatwas:
- Fatwa No 658: The Palestinian religious authorities (Dar Al Iftaa of Palestine 48) have issued a Fatwa concerning the matter of gender affirming surgeries. This Fatwa, identified as number 658, references the Egyptian Dar Al Iftaa and the Islamic Fiqh Council. According to this Fatwa, in alignment with previous rulings, surgeries are deemed acceptable for individuals who are intersex and have exhausted all non-surgical and hormonal treatment options. However, transgender individuals are strictly prohibited from receiving gender affirming healthcare.
Other:
Strictly on paper, it is easy to compare between the law of the occupation and the multiple legal systems adopted in Palestine, and see a “neat” system that offers some recognition to transgender people and calls them in for asylum on one side; and a patchwork of laws that don’t always acknowledge transgender people on the other side. It is important then to remind the reader that the latter system did not evolve organically, but was pulled together from neighboring countries for functionality against brutal occupation. Here, I find it important to amplify the perspective of a Palestinian Queer Organization: AlQaws, who view the discourse around accepting queer Palestinians as refugees within occupied territories. They critique the discriminatory policies carried out vis-à-vis the Palestinian people, and interrogate the narrative, prevalent in both international and Israeli media, of Israel as a safeguard for LGBTQ+ individuals through the lens of “Pinkwashing”. The organization posits that Israel’s actions contribute to the displacement and sustained persecution of LGBTQ+ Palestinians, and explains that the act of crossing into Israeli territory renders them liable to illegal status, thereby compelling them to endure adverse living conditions in a bid to evade apprehension.
Islamic Rulings (Fatwas):
Fatwa 658 – Palestine
Fatwa Number: 658/2012
Issuing Date: 12/11/2012
Mufti: Islamic Fatwa Authority
Issuing Authority: Islamic Fatwa Authority – Palestine 48
Question: What is the judgement on sex correction surgeries i.e. making a Khuntha [Editor note: Intersex person] return to the male or female sex?
Fiqh Rule: Sex change is strictly prohibited for individuals who seek to change their gender solely based on personal preference rather than biological reasons. However, in cases of Khuntha, it is permissible to undergo corrective surgeries for sex correction.
Morocco
Summary:
The Moroccan legal system lacks specific provisions addressing the matter of social or medical transition for transgender individuals. However, these individuals often encounter de-facto criminalization under Article 498, leading to arrests based on moral charges, discrepancies in gender expression, and involuntary disclosure of their transgender identity. Furthermore, there is currently no established legal framework in place to support gender-affirming healthcare, resulting in limited and challenging access to essential services for transgender individuals. Consequently, some individuals resort to self-medication.
Regarding legal gender recognition, a process was recently instituted in 2021 specifically for intersex individuals. However, this process does not extend to transgender individuals. Although there are no official fatwas issued by Moroccan religious authorities regarding gender transition, Al Mufti Mustapha Ben Hamza opposes it, perceiving it as a threat to Moroccan values. It is important to note that Morocco adheres to the Sunni interpretation of Islam, which generally holds negative views towards transgender identities.
Criminalization:
Defacto: While Moroccan law does not explicitly prohibit social, medical, or surgical transition, transgender and gender-non-conforming individuals face persecution under certain legal provisions.
[a]ny person who commits a lewd or unnatural act with a person of the same sex shall be punished by a term of imprisonment of six months to three years and a fine of 200 to 1,000 dirhams, unless the facts of the case constitute a more serious offence
Enforcement:
- February 26, 2015: On February 26, 2015, a press outlet released a report detailing the apprehension of a transgender woman who had been standing on a street corner with the intent to “display her appeal and entice individuals.”
- June 19, 2015: more than 20 individuals identifying as queer were apprehended and formally accused of “propagating moral degradation.” Usually, those detained on charges related to moral conduct are typically afforded the opportunity to change into attire that aligns with societal norms, in order to mitigate potential bias. However, in this particular instance, the accused were presented to the Public Prosecution authorities while attired in their typical women’s clothing.
- January 1, 2019: Manal, a transgender woman, was involved in a minor traffic accident. The police at the scene of the accident apprehended her due to the incongruity between her gender presentation and the gender designation on her official documents. Furthermore, they infringed upon the kingdom’s privacy regulations by publicizing her personal information on social media, thereby subjecting her to forced disclosure.
- April/May 2020: A gender non-conforming artist faced a targeted campaign subsequent to their participation in an online podcast. Upon receiving violent threats, the artist sought legal recourse by visiting the nearest police station to lodge a complaint. However, they were unexpectedly apprehended on charges of “violating COVID restrictions” and “assaulting a police officer,” allegations that were widely recognized as unfounded and regarded as a means to penalize the artist for their non-conforming gender identity and expression. Consequently, they were sentenced to a period of imprisonment lasting four months.
Legal gender recognition:
In 2021, the civil status code underwent revisions with the intention of incorporating a procedure for gender recognition for individuals who are intersex. The regulatory framework governing this process is outlined in the following article:
The permission to give birth to an intersex person is supported by a medical certificate specifying the child’s sex, which is relied on to edit the birth scan, and if there is a change in the sex of the intersex person in the future, by a decision of the competent court.
While the article lacks a formal definition of the term “Khuntha,” it is assumed that the specialized court is established to ensure that individuals assigned one gender at birth, but who develop and identify as the opposite gender during puberty, have the opportunity to legally change their gender marker accordingly. In such cases, individuals are initially designated as either male or female at birth, and they can only obtain recognition of their gender through the endorsement of medical and legal authorities. No such process is possible for transgender people.
Case law in Legal Gender Recognition:
As previously stated, the legal gender recognition process appears to be limited to individuals who are intersex and not transgender. Consequently, the available documented cases align with this observation.
- The case of N.T., 2004: While the accessible digital record does not reflect any documentation of this case, the plaintiff, N.T. speaks openly about her request for legal gender recognition in 2004. N. says that she was born intersex and assigned male at birth, and that the unavailability of gender affirming healthcare in Morocco forced her to seek healthcare in Switzerland. After having undergone surgery, N., then aged 34, filed a request to be recognized as a woman by the Moroccan courts. Her request was rejected. There is no way to independently verify the reasoning for the rejection, as the only public accounts are from the plantiff herself and no Court documents were published publicly.
- Ruling by the Resident Judge in Ain Beni Mathar, Case N° 437/2012, 14-10-2013: The judge in this case granted the request to modify the gender marker for a minor from female to male. This decision was based on the assessment of a medical report, which confirmed that the child possesses male biological characteristics, including male genitalia, and underwent a surgical procedure to rectify a congenital anomaly. Therefore approving the change of documents for the fact that the plaintiff was intersex.
Gender affirming healthcare:
There is currently a lack of documented instances wherein doctors or medical practitioners have faced legal repercussions for providing gender affirming healthcare. It is important to note, however, that gender affirming healthcare is officially recognized only for intersex individuals.
In Morocco, transgender individuals face limited access to certain gender affirming healthcare procedures, such as hormone replacement therapy. These procedures are typically made available through a handful of trusted doctors who can be reached through community support networks. In the absence of safe access to qualified medical professionals, some transgender individuals resort to self-medicating with over-the-counter hormones.
Fatwas:
Morocco is a Sunni-majority state and, as such, is expected to adhere to the overarching interpretations of religious leaders, which are considered to be Fatwas by Al Azhar (Egypt) or the Islamic Fiqh Council (Kingdom of Saudi Arabia). Although Al Mufti Mustapha Ben Hamza has not issued any official fatwas on the topic, he did reject the idea of transition in an article published in 2017. He argues that “true transition” is impossible and views the concept of gender identity as a threat to Moroccan values, a distortion of the institution of family, and an unwarranted interference in the natural order established by the will of God.
