Tunisia

Same-sex sexual activity is prohibited under the Penal Code 1913, which criminalises acts of ‘sodomy’. This provision carries a maximum penalty of three years’ imprisonment. Both men and women are criminalised under this law.

Tunisia adopted the ‘sodomy’ provision in its 1913 Penal Code, which is still in force today (subject to amendments). Tunisia was at the time a protectorate state of France, however France had long since decriminalised same-sex sexual activity. As such the criminalising law is of local origin.

There is substantial evidence of the law being enforced in recent years, with LGBT people being frequently subject to arrest. Local organisations have reported hundreds of arrests since the 2011 Revolution. Detained people are regularly subjected to forced anal examinations, a practice which has been described as “medically worthless” by the UN and which amounts to torture. There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including assault, harassment, and the denial of basic rights and services.

2023

In a judgment on 24 April, the Tunis Court of First Instance declined to grant legal gender recognition to a transgender man. The Court held that there was insufficient evidence of a biological medical condition, dismissing his transgender status as a “mental illness” that did not fulfil the criteria needed to grant legal gender recognition.

2022

It has also been reported that the Court of Cessation, in a strategic case sponsored by the Tunisian LGBT rights organisation Shams, held that LGBT people should have the right to access justice in the event they have been assaulted, without being charged with sodomy themselves, as had taken place in a number of cases. Significantly, the Court reportedly considered that Article 230, which criminalises sodomy, was contrary to the Constitution and international

In August, a new constitution came into force in Tunisia. Human rights organisations have expressed concerns that it will legitimise a further inroad to human rights.

In December, a court of appeal ruled that the prosecution of a LGBT activist was “null and void.”

The man, along with five others, had originally been charged in 2015 in Kairouan under Article 230 of the penal code which criminalises same-sex activity. They were also banned from entering Kairouan for a further three years after serving their sentences. At the time, the authorities subjected the defendants to an anal examination, to be used as evidence in the case.

In 2016, their sentence was reduced to 40 days in prison, however in 2018 the Court of Cassation appealed of that decision. Five of them have since found refuge abroad, where they have been granted asylum.

In December 2022, charges were abandoned against the last defendant still in Tunisia, ‘Daniel’. The charges were declared ”null and void” by a court of appeal which found a procedural defect given that the police searched Daniel’s computer without legal authorisation at the time of arrest.

Also in December 2022, a transgender woman and a gay man were convicted under Article 230 of country’s penal code and sentenced by the Court of First Instance of Grombalia to three years and one year in prison respectively. Their appeal was set to be heard at the Court of Appeal of Nabeul in February 2023. The individuals were amongst 8 people who were arrested earlier in the month, following a police raid on a residence in the coastal town of Hammamet. Others were were released due to a lack of evidence.

2021

In December, a case was filed in Tunisia’s highest court (the Court of Cassation) to challenge the criminalisation of same-sex sexual activity under article 230, and to quash the convictions of two men who were imprisoned for one year in 2020 under this provision. The men were allegedly convicted on the basis that they refused an anal examination which was taken as proof of their guilt.

2020

In February, it was reported that the Court of Cassation definitively rejected the government’s efforts to shut down Shams, a Tunisian LGBT rights organisation. This comes after a Court of Appeal decision in May 2019 upheld a 2016 lower court ruling in favour of Shams.

2018

In June, the Presidential Committee on Individual Freedoms and Equality submitted its recommendations to the Tunisian government to improve human rights in the country. The Committee recommended the decriminalisation of same-sex sexual activity. The proposal suggested two options: either complete decriminalisation through the repeal of article 230, or that those convicted of same-sex sexual activity should only face a fine of 500 Tunisian dinar (or around £150).

In October, 10 MPs submitted a draft bill proposing to decriminalise same-sex sexual activity, recognise gender identity, and prohibit homophobia. This legislation has since stalled.

2023

On 27 February, the Court of Appeal sentenced a trans woman, Maya, and a gay man to six months in prison under Article 230 of the Penal Code, following their initial conviction in December 2022. Local LGBT rights group Damj Association reported that Maya was harassed, intimidated, denied access to an attorney, and had her hair forcibly shaved. She was released from prison in April 2023, having served half her sentence, after more than 32,000 people signed an online petition demanding her release.

In March, Damj issued a “Queer State of Emergency” following a series of raids targeting LGBT people launched on 13 February by the Ministry of Interior.

On 9 November, the Tabarba Criminal Police Squad raided a guest house, where it is claimed a number of young people were engaging in “immoral conduct”, including sodomy. 16 people were detained and are being investigated for several crimes, including sodomy.

2022

In June, activists reported a spike in police harassment of the LGBT community. Local NGO Damj documented more the 60 instances of the police arresting, detaining and prosecuting LGBT people in May and June alone. Damj also reported instances of the police retaliating against victims who went on to file complaints about the behaviour of the police. The organisation reported knowing of at least 47 cases in which the courts tried people under Article 230 in 2022.

In December 2022, a transgender woman and a gay man were convicted under Article 230 of country’s penal code and sentenced by the Court of First Instance of Grombalia to three years and one year in prison respectively. The transgender woman, Maya, was incarcerated in a detention centre for men. The individuals were amongst 8 people who were arrested earlier in the month, following a police raid on a residence in the coastal town of Hammamet. Others were released due to a lack of evidence.

2020

The US Department of State report notes that police occasionally use article 230 to detain and question people about their sexual orientation, reportedly often based on appearance alone. It also reported that since judges often assumed guilt of individuals who refuse anal ‘examinations’, accused people felt coerced to submit. According to the 2020 ILGA World State-Sponsored Homophobia Report, one judge handed down a prison sentence to two men suspected of being gay for their refusal to submit to an anal examination, ruling that their refusal constituted “sufficient evidence” that the crime of same-sex sexual activity had been committed.

Damj, reported that they provided legal assistance to LGBT people at police stations in 116 cases. These figures are five times greater than in 2019. Since the Revolution in 2011, Damj recorded 1458 convictions.

Damj reported that between March and September there were 12 prison sentences handed down against gay men and trans people for offences under articles 230 (‘sodomy’), 225 (‘indecent behaviour in public’), and 125 (‘insulting a public officer’).

In June, a court issued prison sentences in three cases under article 230. In one, an individual who filed a complaint of police abuse was charged with sodomy.

2019

Damj reported that 121 individuals were convicted under article 230 in 2019, with forced anal ‘examinations’ used as the basis for the majority of these convictions. 

In February, Human Rights Watch reported that three men had been sentenced to six months in prison for ‘sodomy’ under article 230. The case stems from an alleged attack, whereby the victim A.F. reported that he had been raped, assaulted and robbed by two men he had met on social media. Police arrested and prosecuted A.F. along with his assailants. Police also subjected A.F. to a forced anal ‘examination’, in spite of a 2017 call by the Tunisian Medical Association for its members to refuse to conduct such examinations without consent.

In July, two young men were sentenced to 18 months’ imprisonment under article 230. One of the accused reported being a victim of sexual harassment while in detention.

2018

A local civil society organisation, ADLI, reported that 120 people had been arrested under the sodomy provision in the first ten months of the year.

2017 

The US Department of State report stated that LGBT-focused NGOs reported at least 45 known cases of arrests under the sodomy law as of September.

In March, two men were sentenced to eight months’ imprisonment after being arrested in December 2016. Authorities claimed they found the men in the midst of a sexual act, but the men denied this and claimed that they were targeted due to their appearance.

2015

On 2 December, six university students in Kairouan were arrested following a raid of the house in which they were having a gathering. They were sentenced to three years in prison for sodomy and banned from residing in Kairouan for five years.

2013

In April, Mounir Baatour, leader of the Tunisian opposition party, was arrested and imprisoned under the country’s sodomy laws. According to Mr Baatour’s lawyer, the leader was subjected to an intrusive anal examination. Press reports from Tunisia at the time of Baatour’s arrest allegedly referred to the minister as a “receptive sodomite”. LGBT groups in Tunisia condemned the arrest as politically motivated.

2023

In February, a shelter for Sub-Saharan LGBT asylum seekers and refugees was attacked by a group of armed men in Ariana, Tunis. The police arrested approximately 30 persons, including at least six UNHCR card holders legally seeking asylum in Tunisia.

In May, a transgender woman was violently attacked with a broken bottle. When her identity was revealed to the police at the station, she was reportedly mocked by police officers, who refused to help her. Her attacker was released 24 hours after his arrest.

2021

A report by Human Rights Watch documented cases in which social media users, including alleged police officers, publicly harassed LGBT activists with social media posts in January and February. This included publishing their personal details and “outing” them online.

In February, following protests that began in January against deteriorating economic conditions and the use of excessive force by police, Human Rights Watch reported that security forces repeatedly targeted protestors with “arbitrary arrest, physical assaults, threats to rape and kill, and refusing access to legal counsel”, and subjected LGBT activists to particular mistreatment.

Between 8 and 18 June 2021, the UN’s Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity visited Tunisia. The Independent Expert noted that testimonies by LGBT people painted a consistent picture of:

• Sanctioning real or presumed non-normative sexual orientation and gender identity.
• Violation of privacy through searches to look for “evidence” of homosexuality.
• Verbal and physical abuse by law enforcement officials.
• Tests ordered by the judiciary to prove homosexuality.
• Difficulty or even impossibility of access to justice, due to fear of arrest and harassment if approaching the police.
• LGBT activists and human rights defenders being targeted.

In October, the President of Damj Association was  by two men, one of whom was dressed in a police uniform. It was said to be in retaliation for complaints filed against police abuse.

2020

The US Department of State report found that LGBT people faced discrimination and violence, including death and rape threats, although social stigma and fear of prosecution discouraged reporting.

In January, Mounir Baatour, leader of the Tunisian Liberal Party and candidate in the 2019 Presidential Election, fled the country for France following death threats. Baatour, who is also the leader of Shams Association, was the only openly gay presidential candidate in Tunisia. In 2021, Mr Baatour was sentenced to a year’s imprisonment and a fine for allegedly posting a blasphemous text against the Prophet Mohammed on Facebook.

Also in January, a police officer and two accomplices assaulted three transgender women with tasers. One individual received serious injuries, including internal bleeding and a skull fracture. She filed a complaint, and was beaten again days later in retaliation. The police officer was suspended while an investigation was ongoing.

From March to September, Damj registered 21 cases of violence against trans people in public, 10 cases of torture, and two of bullying in detention.

In August, the founder of the Tunisian trans rights organisation, OutCasts, and fellow trans activists were beaten by police officers who noticed a mismatch between their gender expression and their IDs. The officers encouraged bystanders to join in the assault and to “kill them”. The activists were beaten unconscious and were denied medical treatment due to their gender identities.

In October, LGBT activists were among those arbitrarily arrested at protests against a proposed new law that would provide police officers with increased impunity for the use of force.

2019

A civil society study published in May found that 50 per cent of the 300 LGBT respondents had been insulted more than once in public due to their actual or perceived sexual orientation, while 24 per cent had been the victim of a physical threat or attack. It also found widespread anecdotal evidence of systemic denial of services to LGBT people.

2018

Plain-clothed Tunisian police broke up a demonstration by LGBT activists in the centre of the capital in January after it was banned “for their own security”.

In November, Human Rights Watch condemned that the Tunisian authorities were confiscating and searching the phones of men they suspect of being gay and pressuring them to take anal tests and to confess to same-sex sexual activity.

In a report published in May, Damj documented more than 30 hate crimes against the LGBT community since 2011.

2017 

In April, Tunisia’s medical council banned the forced anal exams of gay men. The council decreed that doctors must tell people they have a right to refuse the exams. However, Human Rights Watch commented that “people could still feel compelled to give their ‘consent’ in some circumstances.”

2012

A report of the Canadian Immigration and Refugee Tribunal provides a number of reports suggesting that LGBT individuals are discriminated against in society, and provides a limited number of examples. In 2012, the report suggests, a gay Italian and a Belgium tourist were both murdered in the city of Hammamet. According to sources consulted, LGBT individuals could find themselves at a “constant risk of arrest and blackmail”.

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