Treatment of Transgender Individuals

in the Middle East and North Africa

By Lesley Bauer, Juris Doctorate Candidate May 2024, Mitchell Hamline School of Law

Introduction

Despite some advancement in international human rights law towards recognition of the rights of individuals based on sexual orientation and gender identity (SOGI), individuals of transgender experience[1] living in countries and territories in the Middle East and North Africa[2] (MENA) face systemic and endemic discrimination and violence from their states and communities.  This discrimination and violence results from a combination of cultural factors—including the sociolegal legacy of Western colonialism, conservative legal traditions, and male or patriarchal hegemony—and domestic governmental factors, including the absence of standard domestic legislative frameworks for legal gender recognition[3] and the existence of vague colonial-era laws against homosexuality now used to target transgender individuals.

First, this analysis begins with a brief review of relevant international human rights law, which provides a global framework for understanding the obligations and opportunities of states towards transgender individuals.  Second, this paper explores the legal obstacles—including domestic law, legislative processes, and judicial processes—that criminalize gender non-conformity and transgender experience and limit or restrict individuals from pursuing legal gender recognition and documentation in line with their lived gender identity.  Third, this paper explores how legal obstacles and social structures combine to form an environment of pervasive discrimination against transgender individuals that affects all aspects of life, including employment, housing, and general (violent) community discrimination.

While it’s tempting to interpret the above analyses as a bleak and increasingly volatile depiction of transgender experience in the MENA region, the changing socioeconomic and political landscape in the region over the last twenty years, combined with new avenues of civic and progressive participation opened by expanding access to technology, has both permitted and enabled the quiet growth of a progressive LGBTQ+ civil society movement driving slow and careful change for queer communities in the region.  Fourth and finally, this paper looks at mechanisms and actors creating conditions for progress in the MENA region and considers how these methods might be nurtured or tapped to further improve the treatment of transgender communities across national borders.

International Human Rights Law: A Global Framework for Transgender Rights

International human rights law presents an aspirational framework for how nation states and the international community could, and should, work to safeguard the human rights of the LGBTQ+ community and especially individuals of transgender experience.  Within and outside this international framework, many states have incorporated protections for people of all sexual orientations and gender identities into their laws and constitutions that “guarantee the rights of equality and non-discrimination without distinction on the basis of sex, sexual orientation or gender identity.”[4]  This section reviews the current international human rights law framework related to the recognition and protection of LGBTQ+ rights and the obligations and opportunities of states towards individuals of transgender experience.  Importantly, international human rights law and practices frequently do not distinguish between sexual orientation and gender identity; gender identity, and specifically transgender experience, is not independently addressed by any international human rights treatises, resolutions, reports, or documents.

United Nations Resolutions

The Universal Declaration of Human Rights (UDHR) asserts that “all human beings are born free and equal in dignity and rights,” and that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[5]  Gender is not specifically listed in Article 2 of the UDHR, although the phrase “other status” has “frequently been cited to expand the list of people specifically protected.”[6]  In the seventy-five years since the UDHR was first published, the United Nations (UN) and UN human rights treaty bodies “have confirmed that sexual orientation and gender identity are included among prohibited grounds of discrimination under international human rights law.”[7]   At a 2010 event, then Secretary-General of the United Nations Ban Ki-moon spoke out against discrimination based on sexual orientation and gender identity and called for states to repeal laws criminalizing homosexuality or permitting discrimination on the basis of SOGI status and which encourage violence against individuals based on SOGI status.[8]  In 2011, Human Rights Council passed Resolution 17/19, which asked that the UN High Commission for Human Rights sanction “a study to document discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity,” and to assess how international human rights law could be leveraged to help end SOGI-based violence.[9]  The report was updated in 2014 to promote sharing best practices and ways to overcome SOGI-based violence and discrimination.[10]

In 2016, the UN Human Rights Council created a mandate of “Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity,” or the “IE SOGI.”[11]  The IE SOGI undertakes fact-finding country visits, produces reports, and sends appeals and letters of allegation to states perpetrating violence and discrimination against individuals based on SOGI status.[12]

Yogyakarta Principles

In response to increasing discrimination against individuals based on SOGI status, in 2006 a group of human rights scholars and experts drafted the Yogyakarta Principles, a “universal guide to human rights which affirm binding international legal standards with which all States must comply.”[13]  The Yogyakarta Principles were updated in 2017 to reflect developments in international human rights law and practice, and specifically to capture “emerging understanding of violations suffered by persons on grounds of sexual orientation and gender identity and the recognition of the distinct and intersectional grounds of gender expression and sex characteristics.”[14]  While the Yogyakarta Principles are not binding or officially incorporated into international human rights law, they are an important addition to the overall framework for understanding and situating SOGI rights and obligations towards SOGI communities in the international context.[15]

Legal Obstacles

Despite the aspirational possibilities of equality, protection, and recognition outlined in international human rights law and policy, across the globe transgender individuals encounter significant legal obstacles that prevent them from living in equality and dignity.  These obstacles are especially pronounced in the MENA region, where the sociolegal legacy of Western colonialism, conservative religious traditions, and male or patriarchal hegemony compound to criminalize gender non-conformity and restrict access to legal gender recognition and legal documentation changes.  This section provides an overview of what these obstacles look like in practice across the MENA region.

Criminalization

A misconception is that all states in the MENA region are governed by sharia, or Islamic law.  While certain states are indeed governed by sharia,[16] it is more common to see governmental legal structures existing in tandem and often in concert with religious practices and traditions, or for religious offices to exist and operate as a ‘branch’ of state government.

Most states in the MENA region “inherited strict laws against homosexuality from the French or British colonial systems of justice.”[17]  Although some states established new criminal codes at independence[18], most states maintained colonial-era criminal codes and prohibitions as-is or with minor language modifications.[19]  Other states have laws or practices prohibiting homosexuality or gender non conformity that derive from “particular state-sanctioned interpretation[s] of sharia,” or Islamic Law.[20]

While the laws are not uniform or consistent across the MENA region, similarities exist in language and interpretation in that they prohibit ‘indecent,’ ‘immoral,’ or ‘unnatural’ sex or intimate relations.[21]  Though initially drafted to prohibit same-sex relations, the vagueness of these laws enables states to leverage these laws to criminalize gender nonconformity in addition to homosexuality.[22]  In Bahrain, for example, “[a]lthough no law explicitly criminalizes transgender identities, media reports refer to cases in which people have been charged with offenses such as ‘indecent behavior’ and ‘encouraging debauchery’ for wearing gender non-conforming clothing.”[23]  In Tunisia, Article 226 of the Penal Code, which “criminalizes ‘indecency’ and acts deemed to be offensive to public morals,” is frequently used to arrest and ultimately prosecute transgender people.[24]  Security forces in many countries often conflate transgender identity “with sexual orientation, perceiving transgender women as gay men and transgender men as lesbian women,” and transgender individuals are subsequently prosecuted under anti homosexuality laws.[25]

Other states have implemented laws that explicitly criminalize gender nonconformity.  A 2007 Kuwaiti law makes “imitating the opposite sex’” a crime; the law is used to arbitrarily arrest transgender people and make them targets of violence while in police custody.[26]  The federal penal code in the United Arab Emirates (UAE) punishes individuals viewed as men who dress in women’s attire who then enter “a place reserved for women or where entry is forbidden, at that time, for other than women.”[27]  While the law appears targeted to prevent transgender women from entering spaces designated as single-gender (women only) spaces, in practice this law is also used to arrest transgender women (including both citizens and international visitors) in mixed-gender spaces.[28]  A 2018 Omani penal code provision punishes men appearing to dress in women’s clothing.[29]

Legal Gender Recognition & Documentation Changes

Legal gender recognition is defined as official state recognition of an individual’s gender identity, including the “ability to change their name and gender marker on identification documents to reflect their gender identity.”[30]  Without legal gender recognition, transgender people whose lived gender identity differs from their gender identity as assigned at birth face pervasive and systemic marginalization and discrimination, including increased threat of state-sanctioned violence and discrimination in housing, employment, and healthcare.[31]

Almost no states in the MENA region have a standardized legal process or procedure allowing transgender people to acquire legal gender recognition or to legally change gender markers on official state or government documents, nor do they even offer a gender category outside the gender binary of ‘male’ or ‘female.’[32]

In the absence of clearly articulated, standardized processes for legal gender recognition and documentation changes, transgender individuals must rely on the judicial system and the whim of individual judges who make decisions “based on their interpretation of the law.”[33]  These processes are “protracted (it can take from three to ten years), expensive, and inaccessible to most transgender people.”[34]  Although the process for applying for legal gender recognition varies slightly across state borders, generally transgender individuals must have completed surgical and hormonal interventions and submit to an invasive ‘forensic’ medical exam to ensure this requirement has been met before judicial authorities will consider their applications.[35]

A further obstacle to successfully completing gender affirming surgery is the growing distinction between ‘sex change,’[36] a phrase used by Sunni Islamic religious authorities to describe the gender affirming surgery that “some (but not all) transgender people undergo so that their body aligns with their gender identity,” and sex correction or sex reassignment, “by which they mean surgeries conducted on intersex individuals, who are born with characteristics that vary from what is considered typical for female or male bodies.”[37]  Sunni Islamic clerics and religious authorities assert that sex correction, which is deemed as “biologically necessary,” is permitted in this interpretation of Sharia, while ‘sex change’ for “normal people” is not.[38]

Over the past two decades, states and governments have taken steps to align their procedures and practices with the fatwas.  In 2003, Egyptian medical authorities updated their ethics guidelines to prohibit doctors from performing ‘sex change’ surgeries while permitting ‘sex correction’ or sex reassignment surgery for intersex communities.[39]  More recently, the United Arab Emirates, Jordan, Oman, and Morocco have instituted similar restrictions via legislation.[40]   Saudi Arabia and Kuwait have religious or de facto rules that similarly prohibit performing gender affirming surgeries.[41]

States have used these restrictions to prohibit doctors from performing gender affirming surgeries, meaning that transgender individuals who are required to have successfully completed surgery in order to apply for legal gender recognition often cannot obtain that surgery within their own borders.  In Tunisia, for example, transgender individuals are required to undergo all surgical and hormonal treatments and submit to a medical exam before their applications for legal gender recognition will be reviewed.[42]  While Tunisia does not have an outright ban on performing gender affirming surgery, compounding vulnerabilities, high cost, and rampant discrimination make it more likely that transgender individuals will need to travel abroad for gender affirming care.[43]

Even when transgender individuals are able to surmount the significant financial and logistical obstacles of leaving their own country for gender affirming care and then begin the process for legal gender recognition, courts are reluctant to grant transgender applicants legal gender recognition based on the same religious principles used to ban performing ‘sex change’ surgery.[44]  In Kuwait in 2004, a transgender woman was initially granted permission for legal gender recognition, but this was overturned by an appeals court.[45]  In Egypt in 2016, a transgender man who applied for legal gender recognition was denied after the court “relied on the medical report provided by the Forensic Medical Authority, which stated that, ‘after physical and chromosome tests, [the Authority] found that the plaintiff underwent a sex change operation and not a sex reassignment one,” and as such had violated Sharia.[46]  Courts in Bahrain and United Arab Emirates have similarly rejected applications by transgender men and women to be granted legal gender recognition because “the plaintiffs underwent ‘sex change’ surgeries and not ‘sex reassignment’ surgeries.  Therefore, they had violated Sharia.”[47]

In recent years, states in the MENA region have begun to draw minor distinctions between gender affirming surgery performed for individuals diagnosed with “gender identity disorder,” and surgery that is considered a ‘sex change’ procedure for “normal” people.[48]  The outcome of these internal debates varies.  Egypt, for example, used to permit doctors to freely perform gender affirming surgery for transgender individuals formally diagnosed with gender identity disorder.[49]  Decisions about who was and was not eligible for gender affirming surgery were made by a committee “made up of mostly doctors and a representative from Al-Azhar, Egypt’s most prestigious Islamic institution.”[50]  However, the committee stopped issuing permits in 2016 due to a “debate about the morality of the operations.”[51]

Other states, including Tunisia and Lebanon, have begun to develop some very basic jurisprudence further differentiating ‘sex change’ surgery based on whether or not an individual was diagnosed with gender identity disorder.  In 2018, a Tunisian transgender man obtained gender affirming care in Germany, and applied for legal gender recognition in Tunisian courts.[52]  The lower court denied the application, but the decision was overruled by a higher court that “cited the man’s gender identity diagnosis as a reason for its decision, after consulting psychiatrists and forensic doctors to determine whether the plaintiff underwent the gender-affirming care out of medical necessity.”[53]  In Lebanon, a 2017 Appeals court allowed a transgender man to legally change his name and gender identity marker on official documents with a just formal diagnosis of gender identity disorder, even though the man had not had gender affirming surgery.[54]  “The court found that gender affirming surgery should not be a prerequisite to gender identity recognition.”[55]

General Discrimination

Legal gender recognition is about more than simply affirming an individual’s deeply held gender identity; it is also about ensuring that transgender individuals can live with dignity and equality as full members of their states’ civil structures and social fabrics.  Significant obstacles to legal gender recognition and the resulting mismatch between an individual’s legal gender identification and public gender presentation leave transgender people in the MENA region “marginalized and vulnerable, facing limits on their rights to access healthcare, employment, and housing.”[56]  The arbitrary nature of the legal gender recognition process also “places transgender people’s livelihoods at the mercy of the court,” and more specifically the individual judicial authorities considering their applications.[57]  This section provides an overview of how these legal obstacles combine with conservative socioreligious traditions and male/patriarchal hegemony in the MENA region to form an environment of pervasive discrimination against transgender individuals that affects all aspects of life.

Origins of Discrimination

Across the MENA region, conservative socioreligious traditions, tension between religious institutions and ‘secular’ government systems, legacies of Western colonialism, and male patriarchal hegemony create a complex web of pervasive discrimination that causes direct and acute harm to transgender individuals.

Much of the culture in the MENA region is “based around a clear-cut distinction between male and female.”[58]  Gender segregation is widespread across the MENA region, manifesting in gender-segregated private socialization, gender-segregated worship at mosques and religious learning institutions, and even gender segregation in public.[59]  Dress codes, including mandatory (in certain states) or optional use of hijab or other hair, face, and body coverings, create distinct dress codes for individuals perceived to be female and those perceived to be male, and dress codes are often enforced by law.[60]  Dress codes can be enforced both through the types of anti-transgender laws described in Section 2 above or, as in the example of Saudi Arabia, through religious police.[61]  With the gender binary being such an integral part of the social fabric, gender identities or gender presentations that fall outside the binary are not only much more visible but are “viewed as a problem and sometimes even as a threat to the established order.”[62]

Tensions between religious institutions and leaders and ‘secular’ government systems have existed in the region for decades but have become exacerbated in recent years due to ongoing violence and conflict, changing political context, and popular uprisings.  Ongoing violence, conflict, and war—whether civil war or regional or international strife—exacerbates human rights abuses to vulnerable populations.[63]  LGBTQ+ communities can be especially targeted by violent conservative religious groups such as Islamic State (ISIS).[64]  Protracted conflict across multiple states in the region also means that LGBTQ+ individuals are also part of refugee and displaced communities.[65]  War and conflict also creates power vacuums that allow militias and Western-identified terrorist organizations who target LGBTQ+ communities, among other vulnerable populations, to gain traction and power.[66]

Secular governments across the MENA region exist in tension with religious institutions and increasingly oppositional Islamist sociopolitical movements.  Secular governments, often unelected and seen as puppets of Western colonizers, lacked popular support and legitimacy.  In contrast, Islamist social movements originating within communities and filling gaps in the social services net that government could not, were widely respected and supported.  In recent decades, beginning with organizations such as the Muslim Brotherhood in Egypt, Islamist social movements began to seek—and gain—political power and representation in parliamentary legislatures.  In order to maintain power and stave off Islamist opposition movements, secular governments often led crusades against LGBTQ communities under the guise of enforcing morality, decency, and modesty.[67]

The “Arab Spring” uprisings of 2011 “ushered in new governments and reforms” and the promise of democratic change in some countries, bringing “short-lived hope to LGBT[Q+] activists” in the region.[68]  These hopes were twofold: first, that crackdowns and campaigns by secular leaders against LGBTQ+ communities before the Arab Spring, wielded by secular government leaders to demonstrate their moral bona-fides in order to shore up support against Islamist opposition movements, would end, and; second, that popular revolution would usher in the kinds of democratic social values (such as freedom of speech and assembly) that could improve living conditions for LGBTQ+ communities.[69]  As before, however, post-Arab Spring governments used the same strategy of scapegoating LGBTQ+ communities “as a method of proving …religiously conservative credentials and staving off Islamist challenges.”[70]  In Egypt, for example, the government that rose to power after the ouster of former president Hosni Mubarak grew increasingly authoritarian until it was removed from power by the Egyptian military; the new government has resumed the practice of targeting LGBTQ+ communities.[71]

What Discrimination Looks Like

Absent legal frameworks that could protect transgender communities and against the backdrop of complex sociopolitical factors that make gender nonconformity especially visible and risky, transgender individuals in the MENA experience discrimination in areas such as healthcare, employment, housing, and face rampant street violence.

As outlined in Section 2, Islamic fatwas issued in the late 1980s and later incorporated into law and practice across the region permit ‘sex correction’ surgery for intersex communities but ban or severely limit ‘sex change,’ or gender reassignment, surgery.  Absent safe, legal options for gender reassignment surgery, “a dangerous and expensive underground medical industry has emerged resulting in unsupervised treatment in unlicensed centers, without avenues for accountability.”[72]  In Egypt in 2021, a transgender man sought gender affirming care at such an underground clinic, was discharged prematurely, and later died because of the treatment.[73]  In Lebanon, gender affirming medical care—including both surgical and hormonal treatments—are largely inaccessible, expensive, and time-intensive.[74]  Even when healthcare is ‘available’ in Lebanon, there are gaps in supervision and aftercare that make continuing treatment risky, exposing transgender individuals to the risk of having to seek ‘mainstream’ medical care for complications arising from gender affirming healthcare.[75]  A Lebanese transgender woman who took hormones informally (i.e., without direct supervision from a medical professional) developed an infection, sought treatment at a hospital, and was initially turned away before obtaining care because of a mismatch between legal identification and gender presentation.[76]  Medication shortages in the region due to economic crises or conflict raise the cost of medications and healthcare beyond the reach of many transgender individuals.[77]  Restrictions on access to surgery and hormonal care drive those transgender individuals who can afford it to leave the country for treatment.[78]

Because there are no consistent processes for legal gender recognition across the region, transgender individuals increasingly find themselves in a position where their gender identity and presentation does not match their government-issued identification.  This mismatch means that many transgender individuals cannot obtain jobs or housing.  In Lebanon, Tunisia, Egypt, and Jordan individuals can lose their jobs if their gender expression doesn’t match their official documents and can be denied housing either because of documentation discrepancies or flatly for being transgender.[79]  Lacking access to safe housing, transgender individuals are forced to live in unsafe housing or emergency shelters.[80]

Transgender and gender nonconforming individuals are also targets of rampant street violence from both state security services and society at large.  In Kuwait, civilian men and police forces terrorize transgender women with impunity.[81]  “Transgender detainees have consistently reported beatings, torture, sleep deprivation, solitary confinement, humiliating and degrading treatment, sexual assault, and harassment by police,” with sexual harassment including “touching and groping, rape, and blackmailing … into non-consensual sex by threatening to arrest them if they did not comply.”[82]  In Lebanon, transgender women are regularly detained by security forces and subjected to discrimination, including “coerced confessions and prolonged pretrial detention while being denied access to a lawyer.”[83]  Lebanese transgender women are typically placed in men’s cells after being detained.[84]  In Morocco, individuals perceived as transgender are subjected to mob violence by society.[85]  In Egypt and Saudi Arabia, ‘morality police’ or other state authorities use social media and dating apps to bait transgender people and then subject those who show up to the ‘meet’ with violence and detention.[86]  Transgender Egyptians are also subject to arrest and detainment when security forces at ID checkpoints look the pictures that are stored on someone’s phone.[87]

Progress – and How?

It may be tempting to interpret the above analysis as a bleak and increasingly volatile depiction of transgender experience in the MENA region.  However, the changing socioeconomic and political landscape in the region over the last twenty years—combined with new avenues of civic and progressive participation opened by expanding access to technology—has both permitted and enabled the quiet growth of a progressive LGBTQ+ civil society movement driving slow and careful change for queer communities in the region.  This section first considers the style and structure of LGBTQ+ organizations in the region and the types of work these organizations are doing to drive social and political / legislative change within their states.  Second and finally, this section considers how the work of these movements might be nurtured or tapped to further improve the treatment of transgender communities across the MENA region.

Grassroots Organizing for Social and Political Change

Although LGBTQ+ organizations existed, with great risk and caution, across the MENA region prior to the popular uprisings that swept the region in 2011, the Arab Spring “galvanized countless LGBT[Q+] individuals to take part in activism for the first time and left them with new tools for mobilization and alliance-building.”[88]  By 2017, “LGBT[Q+] organizations, or at least informal LGBT[Q+] community networks, existed throughout most of the region, with some apparent gaps in the Gulf” states.[89]  Domestic laws (or lack thereof) regulating the operations and licensure of nongovernmental organizations in most countries in the region “make it virtually impossible for organizations working on issues of sexual orientation and gender identity to legally register,” so organizations either register without specifically mentioning their work on LGBTQ+ issues or avoid registering all together, preferring to work underground.[90]  In Algeria, for example, “a law prohibits the registration of organizations whose aims are inconsistent with ‘public morals’” and imposes criminal penalties for such perceived inconsistencies, creating risks for LGBTQ+ activists as well as any other organizations that work with them.[91]  In Morocco, an LGBTQ+ organization tried to legally register, “but authorities refused even to take the application and hustled those applying out of the registration office.”[92]  Contrastingly, a Tunisian-based organization, Shams, was permitted by a Tunisian court to continue operating “after the government attempted to shut it down.”[93]

LGBTQ+ organizations across the MENA region are working on myriad issues “including homophobic and transphobic violence, decriminalization, forced anal testing, legal aid, HIV prevention, gender equality, media training, digital security, and outreach through the arts.”[94]  These organizations are also building alliances with other civil society organizations and activists across the region, creating intersectional coalitions uniting to support and drive progress across the board and creating enhanced visibility and security for LGBTQ+ issues.[95]  While some organizations are focused largely in intra-state work, others, such as the Lebanon-based Arab Foundation for Freedoms and Equality, focus on regional capacity building and networking opportunities.[96]

Mainstream media across the MENA region has typically published transphobic and homophobic content about LGBTQ+ communities, using “degrading and derogatory terms” to discuss LGBTQ issues and individuals.[97]  LGBTQ activists and organizations such as IraQueer in Iraq have focused on “training Iraqi media in order to change the conversation around LGBT[Q+] rights, starting with the vocabulary.”[98]  Activists and organizations in Egypt want not only to shift the conversation around LGBTQ rights but also “get mainstream media to report on human rights abuses against LGBT people.”[99]  LGBTQ+ activists also use broader social media video and message tools to spread messages, launch awareness campaigns, and connect community members across borders.[100]

While most of these civil society movements are “still in [their] infancy” and not yet directly challenging the laws, policies, and judicial approaches that discriminate and cause harm against transgender and broader LGBTQ+ communities, these movements are a critical starting point, as it is “only after groundwork has been done to strengthen LGBT[Q+] communities themselves, … to build support from broader civil society and key allies, and to begin raising awareness of LGBT[Q+] rights among the general public, that movements can take the bold step of challenging discriminatory laws and policies.”[101]  Especially in states with more aggressive laws criminalizing transgender individuals, these foundational steps to change social attitudes and norms, build relationships with other civil society organizations, and establish community support networks for LGBTQ+ individuals pave the way for more direct forms of action and engagement.

Recently, LGBTQ+ activists in the MENA region have “begun to make use of international advocacy opportunities, including during the Universal Periodic Review (UPR) process at the U.N. Human Rights Council, where every country’s human rights record is evaluated by fellow member states every four to five years.”[102]  UPR reviews are based on State-provided information, reports from “independent human rights experts and groups,” and “information from other stakeholders” including international human rights watchbodies and national human rights organizations or advocacy networks.[103]  “Some activists have made use of the UPR to elicit commitments from their governments with regard to LGBT[Q+] rights.”[104]  In 2010, “Iraq became the first predominantly Arab country to accept UPR recommendations related to sexual orientation and gender identity, including recommendations to ‘address extrajudicial killings of persons on the basis of their actual or presumed sexual orientation.’”[105]  Four years later, Iraq “accepted a recommendation to ‘avoid all forms of discrimination based on ethnicity, religion, gender or sexual orientation.’”[106]  Even where states have not committed to remedial action for LGBTQ+s communities, the inclusion of national organizations in stakeholder feedback for UPR reviews is important.  For example, a summary of stakeholder feedback compiled during Tunisia’s 2022 UPR, which included joint statements from a variety of Tunisian based organizations, called on Tunisia to end “the practice of bringing persons to justice on the basis of their gender identity (profiling),” to punish “violence based on sexual orientation or gender expression or identity,”, to provide clear and standard avenues for legal gender recognition, and to end the practice of putting transgender women in male prisons.[107]  LGBTQ+ activists from two national organizations in Algeria made a submission to Algeria’s 2016 review “calling for a series of reforms, including the passage of a comprehensive anti-discrimination law and hate crimes legislation, the decriminalization of same-sex conduct, police training on sexual orientation and gender identity, and the right to form LGBT associations.”[108]

Keeping Change Going: Recommendations for the Future

Historically, “broad based grassroots movements” have been “the single-most important factor driving democratic development” across the globe.[109]  LGBTQ+ organizations in the MENA region play a critical role in driving such democratic development, advocating for change for and within their communities, and pushing for political and legal change at the state level.  The work of LGBTQ+ communities presents both a roadmap for change across the region and an opportunity to consider how this work can shift to ensure it more directly addresses the needs of transgender communities.

First, LGBTQ+ communities in the MENA region should continue to focus on community building, creating safe spaces for queer expression and culture, and alliance building within and across other national progressive organizations.  Community building is a critical “first step toward developing an LGBT[Q+] activist moment,” but not just in terms of amassing enough support to be taken seriously in pushes for legal and political reform.  In nations where queer communities do not have access to mass media communication tools or are not reflected and addressed by state campaigns, community building is a way for queer communities to educate its members about health concerns, physical and digital safety, and even the different identities and lived experiences of members under the LGBTQ+ umbrella.  Building alliances with other progressive community organizations, such as those advocating for the rights of women or immigrants, not only provides LGBTQ+ with safety and resources “essential to carrying out day-to-day work,” but also helps to affect awareness of LGBTQ+ issues and identities for members of allied organizations.[110]

Second, LGBTQ+ organizations should continue to push for legal and legislative reform at the state level, and should center the concerns and needs of transgender communities in this work.[111]  Needed legal reforms include protections for discrimination from employment and housing based on SOGI status, and reform of penal codes that criminalize gender expression or same-sex activity or ‘immorality.’  Critically, LGBTQ+ organizations should advocate for legislation that establishes clear, standard, and easily accessible mechanisms for legal gender recognition, including the elimination of requirements that individuals must complete hard-to-access gender reassignment surgeries in order to be eligible to obtain official documents.[112]

Third, LGBTQ+ organizations in the MENA region are uniquely positioned to impact how international human rights legal frameworks and governing bodies can be leveraged to improve the human rights of individuals based on SOGI status.  It’s easy to see international human rights legal frameworks, which are often nonbinding, as toothless and unenforceable and thus irrelevant to the very citizens they were written to protect.  By leveraging mechanisms such as the UN UPR to call attention to issues harming LGBTQ+ communities, LGBTQ+ and other civil society organizations across the MENA region are demonstrating that everyday citizens can leverage international human rights legal frameworks to drive substantive legal change within their own borders.

Finally, one point of concern is that in the MENA region, as elsewhere in the world, transgender communities quickly become just the ‘T’ of a broader LGBTQ+ umbrella movement.  Although LGBTQ+ movements aim to be inclusive and fight for equality for everyone on the rainbow spectrum, transgender communities experience particular compounding vulnerabilities and discrimination that differ from that experienced by members of the broader queer community.  Activist organizations have a unique opportunity to center the concerns of transgender individuals in their initiatives and calls to action, including access to legal gender recognition processes and decriminalization and destigmatization of gender affirming healthcare.  Rather than push the concerns of transgender communities to the end of the fight for LGBTQ+ rights in the region, activists in the MENA region should ensure these communities’ concerns remain central to their work.

Conclusion

Transgender individuals in the Middle East and North Africa experience systemic and endemic discrimination and violence from their states and communities.  This discrimination and violence results from a combination of cultural factors—including the sociolegal legacy of Western colonialism, conservative legal traditions, and male or patriarchal hegemony—and domestic governmental factors, such as no standardized and clearly accessible domestic legislative frameworks for legal gender recognition and the existence of vague colonial-era laws against homosexuality now used to target transgender individuals.

Despite these seemingly insurmountable obstacles, LGBTQ+ civil society movements have still emerged and are making slow progress across the MENA region.  These movements are leveraging formal, informal, and cultural channels to change social narratives, challenge biased media reporting, and—in recent years, with mixed success—to challenge discriminatory laws and practices through national judicial authorities and by leveraging reporting mechanisms afforded by international organizations.  While the growth and progress of these movements vary from state to state and differ from LGBTQ+ movements and progress in other countries, these movements are best poised to drive change from the bottom up within their communities and societies at large.  The work of these movements provides a roadmap for future work and presents an opportunity to center the unique needs and concerns of transgender individuals in this critical grassroots work.

[1] For the purposes of this paper, the term transgender is defined as an identity label used to describe a person whose gender identity does not align with the socially expected one according to their sex assigned at birth.  LGBTQ Terms and Definitions, University of Florida Multicultural and Diversity Affairs, https://lgbtq.multicultural.ufl.edu/programs/speakersbureau/lgbtq-terms-definitions/ (last visited July 23, 2023).  The term transgender is often used as an umbrella term to include people who transgress gender norms, including genderqueer people, trans women, trans men, bigender or polygender people, etc.  Id.  This paper will use “individuals of transgender experience” and “transgender persons” interchangeably.

[2] For the purposes of this paper, the following countries and territories are within the scope of the MENA region: Morocco, Algeria, Tunisia, Libya, Egypt, Lebanon, Palestine, Israel, Jordan, Syria, Iran, Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, United Arab Emirates, Yemen, and Oman.

[3] Nora Noralla, Tough Territory for Transgender People in the Middle East and North Africa, Human Rights Watch (April 8, 2022), https://www.hrw.org/news/2022/04/08/tough-territory-transgender-people-middle-east-and-north-africa?gclid=Cj0KCQjwla-hBhD7ARIsAM9tQKsKz-uaBupNWkOLy8u8HBtTQEq45vw93e18DFCKo6rUnLFiVu9VvHIaAgPtEALw_wcB

[4] International Commission of Jurists, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, Introduction (March 2007), https://yogyakartaprinciples.org/introduction/

[5] G.A. Res. 217 (III) A, Art. 1-2, Universal Declaration of Human Rights (Dec. 10, 1948).

[6] Press Release, United Nations Human Rights office of the High Commissioner, “Universal Declaration of Human Rights at 70: 30 Articles on 30 Articles – Article 2,” U.N. Press Release (Nov. 11, 2018), https://www.ohchr.org/en/press-releases/2018/11/universal-declaration-human-rights-70-30-articles-30-articles-article-2

[7] Fact Sheet, United Nations Free & Equal: United Nations for LGBT Equality, “International Human Rights Law and Sexual Orientation & Gender Identity” (July 2017), https://www.unfe.org/wp-content/uploads/2017/05/International-Human-Rights-Law.pdf.  “This position has been confirmed repeatedly in decisions and general guidance issued by several treaty bodies, such as the United Nations Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women.”  Id.

[8] Press Release, Secretary General, “Confront Prejudice, Speak Out against Violence, Secretary-General Says at Event on Ending Sanctions Based on Sexual Orientation and Gender Identity,” U.N. Press Release SG/SM/13311-HR/5043 (Dec. 10, 2010), https://press.un.org/en/2010/sgsm13311.doc.htm

[9] Human Rights Council Res. 17/19, U.N. Doc A/HRC/RES/17/19 (July 14, 2011); Report of the United Nations High Commissioner for Human Rights, “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity,” U.N. Doc. A/HRC/19/41 (Nov. 17, 2011), https://www.ohchr.org/sites/default/files/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf; Avani Uppalapati et al., International Regulation of Sexual Orientation, Gender Identity, and Sexual Anatomy, 18 Geo. J. Gender & L. 635, 639 (2017).

[10] Human Rights Council Res. 27/32, U.N. Doc. A/HRC/RES/27/32 (Oct. 2, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/177/32/PDF/G1417732.pdf?OpenElement

[11] Human Rights Council Res. 32/2, U.N. Doc. A/HRC/RES/32/2 (July 15, 2016), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/154/15/PDF/G1615415.pdf?OpenElement.  The mandate for the IE SOGI was renewed in June 2019 and July 2022; the current mandate holder is Victor Madrigal-Borloz.  Office of the High Commissioner of Human Rights, Independent Expert on sexual orientation and gender identity, https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity

[12] Id.

[13] International Commission of Jurists, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, Introduction (March 2007), https://yogyakartaprinciples.org

[14] Id.

[15] Uppalapati, supra note 8.

[16] Saudi Arabia and Iran are governed by state-sanctioned interpretations of sharia originating from different sects of Islam (Saudi Arabia is governed by a Wahabi interpretation of Sunni Islam; Iran is governed by a Shiite Islam).

[17] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 6 (2018).  MENA region states colonized by France or Britain include Morocco, Tunisia, Algeria (considered, at that time, an extension or part of France), Lebanon, Bahrain, Oman, Qatar, parts of modern-day Yemen, the United Arab Emirates, Jordan, and pre-Israel Palestinian Mandate.  Id. at n.2.

[18] Jordan (1951) and Bahrain (1976).  Id.

[19] Id.

[20] Id.

[21] Id. at 6-8.

[22] Id.

[23] Id. at 9.

[24] Amnesty International, Tunisia: Reform of repressive laws and practices lagging, 10 (May 2021), https://www.amnesty.org/en/wp-content/uploads/2021/05/MDE3054522016ENGLISH.pdf

[25] Nora Noralla, Tough Territory for Transgender People in the Middle East and North Africa, Human Rights Watch (April 8, 2022), https://www.hrw.org/news/2022/04/08/tough-territory-transgender-people-middle-east-and-north-africa?gclid=Cj0KCQjwla-hBhD7ARIsAM9tQKsKz-uaBupNWkOLy8u8HBtTQEq45vw93e18DFCKo6rUnLFiVu9VvHIaAgPtEALw_wcB

[26] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 8 (2018).  While the law is predominantly used to target and criminalize transgender people, the vagueness of the law and the failure of the law “to define what ‘imitating’ the opposite sex means” has resulted in cisgender people also being arbitrarily arrested and beaten.  Id. at 8-9.

[27] Human Rights Watch, UAE: Stop Policing Gender Expression, Sept. 7, 2017 (https://www.hrw.org/news/2017/09/07/uae-stop-policing-gender-expression

[28] Id.  Two Singaporean nationals, one cisgender and one transgender were arrested in a shopping mall for “looking feminine.”  Id.  In another instance, an international fashion model was detained at the Dubai Airport for being transgender.  Casey Quackenbush, Model Gigi Gorgeous Says She Was Detained at Dubai Airport for Being Transgender, TIME (Aug. 12, 2016),  https://time.com/4447749/transgender-gigi-gorgeous-dubai-detained/.

[29] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 8 (2018).

[30] Nora Noralla, Tough Territory for Transgender People in the Middle East and North Africa, Human Rights Watch (April 8, 2022), https://www.hrw.org/news/2022/04/08/tough-territory-transgender-people-middle-east-and-north-africa?gclid=Cj0KCQjwla-hBhD7ARIsAM9tQKsKz-uaBupNWkOLy8u8HBtTQEq45vw93e18DFCKo6rUnLFiVu9VvHIaAgPtEALw_wcB

[31] Id.

[32] Israel and Turkey have legal gender change or recognition processes, although neither process is particularly respectful of the dignity and autonomy of transgender individuals.  Until 2015, Israel’s process permitted legal gender recognition and document changes only after gender reassignment surgery and required a two-year waiting period.  See Lee Yaron, Israel Approves Allowing Transgender People to Change Gender on IDs Without Surgery, Haaretz (Feb. 26, 2020), https://www.haaretz.com/israel-news/2020-02-26/ty-article/.premium/israel-approves-allowing-transgender-people-to-change-gender-on-ids-without-surgery/0000017f-e522-df5f-a17f-fffe0c160000.  Turkey’s process, outlined in Article 40 of the Turkish Civil Code, required transgender individuals to be permanently sterilized in order to be eligible for legal gender recognition.  See Sinem Hun, Legal recognition of transgender people in Turkey: will the court seize the historic opportunity?, Open Democracy (June 28, 2017), https://www.opendemocracy.net/en/north-africa-west-asia/legal-recognition-of-transgender-people-in-turkey-will-court-seize-/

[33] Nora Noralla, Tough Territory for Transgender People in the Middle East and North Africa, Human Rights Watch (April 8, 2022), https://www.hrw.org/news/2022/04/08/tough-territory-transgender-people-middle-east-and-north-africa?gclid=Cj0KCQjwla-hBhD7ARIsAM9tQKsKz-uaBupNWkOLy8u8HBtTQEq45vw93e18DFCKo6rUnLFiVu9VvHIaAgPtEALw_wcB

[34] Id.

[35] Id.

[36] Sex change is a phrase used by Sunni Islamic religious authorities to describe gender reassignment surgery.  See Nora Noralla, Sunni Islamic jurisprudence, sex reassignment surgery and transgender rights, Open Democracy (Dec. 13, 2021), https://www.opendemocracy.net/en/north-africa-west-asia/sunni-islamic-jurisprudence-sex-reassignment-surgery-and-transgender-rights/

[37] Id.

[38] Id.  Two important fatwas (religious rulings) addressing transgender issues in the 1980s were issued by Sunni Islamic clerics, including one from Al-Azhar in 1988 and a second from the Islamic Fiqh Council of the Muslim World League in 1989.  See Jakob Skovgaard-Peterson, Sex Change in Cairo: Gender and Islamic Law, 2 J. of the Int’l. Inst. (1995); see M. Alipour, Transgender Identity: The Sex-Reassignment Surgery Fatwas and Islamic Theology of A Third Gender, 7 Religion and Gender 164, 168 (2017).

[39] Nora Noralla, Sunni Islamic jurisprudence, sex reassignment surgery and transgender rights, Open Democracy (Dec. 13, 2021), https://www.opendemocracy.net/en/north-africa-west-asia/sunni-islamic-jurisprudence-sex-reassignment-surgery-and-transgender-rights/

[40] Id.

[41] Id.

[42] Nora Noralla, Tough Territory for Transgender People in the Middle East and North Africa, Human Rights Watch (April 8, 2022), https://www.hrw.org/news/2022/04/08/tough-territory-transgender-people-middle-east-and-north-africa?gclid=Cj0KCQjwla-hBhD7ARIsAM9tQKsKz-uaBupNWkOLy8u8HBtTQEq45vw93e18DFCKo6rUnLFiVu9VvHIaAgPtEALw_wcB

[43] Id.

[44] Nora Noralla, Sunni Islamic jurisprudence, sex reassignment surgery and transgender rights, Open Democracy (Dec. 13, 2021), https://www.opendemocracy.net/en/north-africa-west-asia/sunni-islamic-jurisprudence-sex-reassignment-surgery-and-transgender-rights/

[45] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 12 (2018).

[46] Nora Noralla, Confused Judiciary & Transgender Rights: Inside the MENA Region’s Case Law on Legal Gender Recognition, Manara Magazine (March 17, 2022), https://manaramagazine.org/2022/03/confused-judiciary-transgender-rights-inside-the-mena-regions-case-law-on-legal-gender-recognition/

[47] Nora Noralla, Sunni Islamic jurisprudence, sex reassignment surgery and transgender rights, Open Democracy (Dec. 13, 2021), https://www.opendemocracy.net/en/north-africa-west-asia/sunni-islamic-jurisprudence-sex-reassignment-surgery-and-transgender-rights/

[48] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 12 (2018).

[49] Id. See also Nora Noralla, Confused Judiciary & Transgender Rights: Inside the MENA Region’s Case Law on Legal Gender Recognition, Manara Magazine (March 17, 2022), https://manaramagazine.org/2022/03/confused-judiciary-transgender-rights-inside-the-mena-regions-case-law-on-legal-gender-recognition/

[50] Heather Murdock, Transgender Operations Stall in Egypt, Voice of America News (June 15, 2016), https://www.voanews.com/a/transgender-operations-stall-egypt/3367741.html

[51] Heather Murdock, Transgender Operations Stall in Egypt, Voice of America News (June 15, 2016), https://www.voanews.com/a/transgender-operations-stall-egypt/3367741.html

[52] Id.

[53] Id.

[54] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 11-12 (2018).

[55] Id. at 12.

[56] Nora Noralla, Sunni Islamic jurisprudence, sex reassignment surgery and transgender rights, Open Democracy (Dec. 13, 2021), https://www.opendemocracy.net/en/north-africa-west-asia/sunni-islamic-jurisprudence-sex-reassignment-surgery-and-transgender-rights/

[57] Nora Noralla, Confused Judiciary & Transgender Rights: Inside the MENA Region’s Case Law on Legal Gender Recognition, Manara Magazine (March 17, 2022), https://manaramagazine.org/2022/03/confused-judiciary-transgender-rights-inside-the-mena-regions-case-law-on-legal-gender-recognition/

[58] Brian Whitaker, Transgender issues in the Middle East, Al Bab, https://al-bab.com/sites/default/files/trans.pdf

[59] Brian Whitaker, Transgender issues in the Middle East, Al Bab, https://al-bab.com/sites/default/files/trans.pdf

[60] Id.

[61] Id.  In Saudi Arabia, strict dress codes are enforced by the Committee for the Promotion of Virtue and the Prevention of Vice.

[62] Id.

[63] Human Rights & Conflict: Exploring the Links between Rights, Law, and Peacebuilding (Julie Mertus and Jeffrey Helsing, eds., United States Institute of Peace 2006).

[64] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 17-19 (2018).

[65] Id. at 19.

[66] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 13-21 (2018).

[67] Id. at 13-14.

[68] Id. at 13.

[69] Id. at 13-14.

[70] Id. at 14.

[71] Id. at 14.

[72] Nora Noralla, Tough Territory for Transgender People in the Middle East and North Africa, Human Rights Watch (April 8, 2022), https://www.hrw.org/news/2022/04/08/tough-territory-transgender-people-middle-east-and-north-africa?gclid=Cj0KCQjwla-hBhD7ARIsAM9tQKsKz-uaBupNWkOLy8u8HBtTQEq45vw93e18DFCKo6rUnLFiVu9VvHIaAgPtEALw_wcB

[73] Mada Masr, Deterred from official healthcare, 26-yr-old dies after sex reassignment surgery, Mada Masr (Aug. 31, 2021), https://www.madamasr.com/en/2021/08/31/news/u/deterred-from-official-healthcare-26-yr-old-dies-after-sex-reassignment-surgery/

[74] Nora Noralla, Tough Territory for Transgender People in the Middle East and North Africa, Human Rights Watch (April 8, 2022), https://www.hrw.org/news/2022/04/08/tough-territory-transgender-people-middle-east-and-north-africa?gclid=Cj0KCQjwla-hBhD7ARIsAM9tQKsKz-uaBupNWkOLy8u8HBtTQEq45vw93e18DFCKo6rUnLFiVu9VvHIaAgPtEALw_wcB

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] Id. 

[80] Human Rights Watch, Don’t Punish Me for Who I Am: Discrimination Against Transgender Women in Lebanon (Sept. 3, 2019), https://www.hrw.org/report/2019/09/03/dont-punish-me-who-i-am/systemic-discrimination-against-transgender-women-lebanon

[81] Human Rights Watch, They Hunt Us Down For Fun: Discrimination and Police Violence Against Transgender Women in Kuwait 22 (2012)

[82] Id. at 22-23.

[83] Human Rights Watch, Don’t Punish Me for Who I Am: Discrimination Against Transgender Women in Lebanon (Sept. 3, 2019), https://www.hrw.org/report/2019/09/03/dont-punish-me-who-i-am/systemic-discrimination-against-transgender-women-lebanon

[84] Id.

[85] Human Rights Watch, Morocco: Homophobic Response to Mob Attack (July 15, 2015)

[86] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 34 (2018).

[87] Id.  Egyptian LGBTQ+ activists also state that there are now checkpoints established specifically to look at peoples’ phones.  Id.

[88] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 14 (2018).

[89] Id. at 27.

[90] Id. at 27.

[91] Id. at 39.

[92] Id. at 10.

[93] Id.

[94] Id. at 26.

[95] Id. at 35-36; see also OutRight Action International, Activism and Resilience: LGBTQ Progress in the Middle East and North Africa 1 (2017).

[96] Id. at 35-36.

[97] OutRight Action International, Arab Mass Media: A Monitoring Report Looking at Sexuality and Gender Identity in Arabic Mass Media from 2014 to 2017

[98] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 44 (2018).

[99] Id. at 45.

[100] Id. at 46.

[101] Id. at 27, 54-55.

[102] Id. at 58.

[103] United Nations Human Rights Council, Universal Period Review: Basic facts about the UPR, https://www.ohchr.org/en/hr-bodies/upr/basic-facts

[104] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 58 (2018).

[105] Id. at 59.

[106] Id.

[107] Rep. of the Office of the United Nations High Commissioner for Human Rights: Summary of Stakeholders’ submissions on Tunisia, U.N. Doc. A/HRC/WG.6/41/TUN/3, at 8 (July 25, 2022).

[108] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 58 (2018).

[109] Maria J. Stephan and Erin Mazursky, Bring Back Our Democracy, Foreign Policy (July 16, 2015), https://foreignpolicy.com/2015/07/16/bring-back-our-democracy-nigeria-boko-haram/

[110] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 36 (2018).

[111] Nora Noralla, Confused Judiciary & Transgender Rights: Inside the MENA Region’s Case Law on Legal Gender Recognition, Manara Magazine (March 17, 2022), https://manaramagazine.org/2022/03/confused-judiciary-transgender-rights-inside-the-mena-regions-case-law-on-legal-gender-recognition/

[112] Sinem Hun, Legal recognition of transgender people in Turkey: will the court seize the historic opportunity?, Open Democracy (June 28, 2017), https://www.opendemocracy.net/en/north-africa-west-asia/legal-recognition-of-transgender-people-in-turkey-will-court-seize-/