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© 2023 Christina Atik for Human Rights Watch

Across the Middle East and North Africa region, the criminalization of consensual same-sex relations and diverse gender expressions persists, subjecting people identifying as lesbian, gay, bisexual, or transgender (LGBT) to widespread human rights abuses. Within this landscape, some countries do not have explicit laws targeting people with diverse sexual orientations, but that does not mean that they are safe or equal.

The fight to abandon laws that criminalize same-sex relations and ensure equality for all may overlook other oppressive practices employed by states to “legally” harass and prosecute LGBT people. A complex legal dynamic between criminalization and decriminalization unfolds, particularly evident in the cases of Egypt, Jordan, and Kuwait.

Alternative legal avenues, such as laws pertaining to public morality and debauchery, serve as tools for authorities to persecute and intimidate LGBT people. In Egypt, while consensual same-sex relations are not explicitly criminalized, vaguely defined laws related to public morality provide a pretext for discriminatory treatment. Article 178 of the Egyptian penal code, for instance, sanctions the creation or promotion of material deemed contrary to public morals, enabling the unjust targeting of LGBT people.

In 2017, an Egyptian writer and activist, Sarah Hegazy, among others, was arrested after raising a rainbow flag at a concert in Cairo. Sarah was charged with inciting acts of debauchery and immorality and went to live in exile in Canada after being released. Sarah ended her life in 2020 after struggling with the mental and emotional impact of being abused in detention.

In Jordan, where consensual same-sex relations have been decriminalized since 1951, the absence of robust legal protections leaves LGBT people vulnerable to state-sanctioned discrimination. Security forces use ambiguous morality laws and digital targeting tactics to target and harass them.

Article 320 of Jordan’s penal code, which penalizes indecent acts in public spaces, offers leeway for subjective interpretations, while recent cybercrime legislation further encroaches on privacy and freedom of expression, creating another avenue for harassing or even prosecuting LGBT people. The law’s vague provisions around promoting and inciting prostitution and sexual behaviour, and inciting immorality, could be used to justify the prosecution of LGBT people in particular.

For example, security forces in Jordan entrapped a transgender woman in 2019, searched her phone, and based on her personal photos, detained her pretrial. After enduring eight court hearings, she was released on bail.

In Kuwait, article 198 of the penal code, which previously criminalized gender non-conformity, was overturned in February, 2020, initially signaling progress for transgender and non-binary rights. However, subsequent actions, such as mass deportations under the guise of “security” measures, underscore the ongoing threats to LGBT people. And provisions within Kuwait’s communications law, notably article 70, pose further threats to freedom of expression and privacy, potentially exacerbating the vulnerability of LGBT individuals.

Criminalization of same-sex relations remains a legal hurdle, not only to ensuring equal access to justice and treatment for everyone, but also in recognizing and respecting personal and sexual autonomy. The consequences of criminalization pose various challenges to guaranteeing universal human rights such as the right to freedom of expression and association for LGBT people, in addition to allowing for prejudice on the basis of sexual orientation and gender identity and expression to continue.

On the other hand, as LGBT activists and human rights defenders call on countries  to abolish the criminalization of same-sex relations and repeal laws that are inherently discriminatory and abusive, it is of great importance to recognize that decriminalization as a mere legal procedure, if not grounded in clear and substantive measures to protect and provide legal remedies to those affected, it can still leave LGBT people vulnerable to marginalization and prosecution.   

While decriminalization represents a fundamental protection practice and a significant step toward affirming the rights of LGBT people, the mere absence of punitive laws is insufficient to ensure genuine equality and protection. Implementation gaps and the misuse of existing legal frameworks continue to leave people exposed to discrimination and violence. Affirmative laws explicitly safeguarding against such abuses are imperative to foster a society where LGBT people are treated as equal members.

Decriminalization of same-sex relations should include all the necessary legislative measures that not only prohibit bias and discrimination, but that guarantee accountability, justice, and protection from harmful and inhuman treatment.

True progress lies not only in decriminalization but in the establishment of comprehensive legal protections that safeguard the diversity of sexual orientations and gender identities and are grounded and guided by a genuine respect for human rights and dignity.

This essay is part of a series marking the 20th anniversary of the LGBT rights program at Human Rights Watch. The collection of articles explores the multifaceted challenges LGBT people face globally. Find them here.

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