A recent set of amendments introduced in Iraq has stirred considerable controversy as they aim to target individuals who identify as queer. Notably, these amendments not only take a stance against same-sex relationships but also introduce new criminal sanctions that seek to criminalize transgender identities themselves, as well as the provision and pursuit of gender-affirming healthcare. It is crucial to acknowledge that despite claims made by proponents of these amendments asserting their alignment with Islamic Sharia, the provisions targeting transgender individuals are not by Islamic principles nor consistent with the Constitution.
A New Direction of Transgender Criminalization:
In April 2024, the Iraqi Parliament overwhelmingly voted to amend law No. 8/1988 on combating prostitution, subsequently renaming it the “law on combating prostitution and homosexuality.” These amendments introduce new criminal penalties, with terms ranging from 10 to 15 years, for individuals engaged in same-sex relationships, partner swapping, and adultery.
This legislative resolution follows several endeavors by Iraqi parliamentarians to criminalize what they perceive as a source of Western moral corruption, namely LGBTQ+ identities, which are not officially classified as criminal offences in Iraq. Initially, the approved amendments faced potential obstacles when the Speaker of the House, Mohamed al-Halbousi, withdrew them from parliamentary discussions. However, the members of Parliament championing the amendments challenged this decision, leading to the Supreme Constitutional Court declaring al-Halbousi’s actions unconstitutional In January 2024. Consequently, the amendments were passed by a vote in April.
The proposed amendments, obtained by Cairo 52, consist of eleven articles that elaborate on the extent of criminalization for each prohibited act. While the primary focus lies in the criminalization of same-sex relationships, these amendments introduce charges that are unparalleled in any other legal system across the Middle East and North Africa (MENA) region.
Of particular significance is the criminalization of transgender identities themselves. Article One of the amendments employs the term “āltẖnṯ,” roughly translated as “sissification,” to refer to transwomen and states, “Every deliberate act to imitate the female sex is subject to punishment, except for those who do it to act.”
Article (7/1) of the amendments imposes criminal penalties on individuals involved in āltẖnṯ, stipulating that:
“First: any person engaged in any activity related to Takhanoth (being transgender) or hinting at it is liable to imprisonment for a period not exceeding three years or a fine ranging from 5,000,000 to 10,000,000 dinars.”
Firstly, it is essential to note that the approach taken by lawmakers in Iraq, as outlined in this article, diverges from the standard practice observed in the Middle East and North Africa (MENA) region. In MENA, it is customary for lawmakers to criminalize actions associated with transgender identities, such as cross-dressing, imitating the opposite sex, and wearing indecent clothing, rather than criminalizing the identity itself. Iraqi lawmakers aligned partially with their regional counterparts regarding regulating gender-affirming healthcare in the proposed amendments. Article (7/2) stipulates that:
“Any individual who undergoes or assists in the process of sex reassignment is subject to a minimum prison sentence of one year and a maximum of three years. Similarly, medical professionals, including doctors and surgeons, who perform procedures contrary to the provisions stipulated in this legislation are liable to the same punitive measures.”
The amendment above, in conjunction with Article Three, which restricts gender-affirming healthcare to individuals with a biological condition, i.e. Intersex people, reflects the prevailing trajectory in the region. This trajectory restricts transgender healthcare by prohibiting it at its source and specifically regulating healthcare providers and not transgender people themselves. Nevertheless, Iraq’s amendment introduces a new legal trajectory in the region by criminalizing transgender individuals themselves for seeking gender-affirming healthcare rather than solely targeting healthcare providers. This represents a departure from the conventional approach observed in the MENA region thus far.
While these amendments may not come as a surprise to individuals who closely monitor the experiences of transgender individuals in Iraq, they contradict previous policies implemented by the Iraqi authorities. Iraq was previously recognized as the first and, to date, the only Arabic-speaking country in the MENA region to include transgender individuals in medical policy. This recognition was established through the Ministry of Health’s Instructions for Sex Correction of 2002. These instructions consisted of seven articles that outlined the establishment of a dedicated medical committee responsible for processing applications from individuals seeking to “correct their sex,” including those who are intersex or transgender. Article Four explicitly acknowledges transgender individuals by stating that:
“If, following a comprehensive clinical psychiatric evaluation, it is determined that the condition is attributable to a gender identity disorder (transsexualism), the patient undergoes an assessment by the Initial Psychiatric Committee, followed by a subsequent evaluation by the Psychiatric Appeals Committee. Should the patient consent to pursue corrective measures, they will subsequently participate in a rehabilitation treatment program, the duration of which will be determined by the Committee to facilitate adjustment to the correction.”
This approach was consistent with the prevailing medical perspective in the early 2000s, which considered transgender individuals as individuals with mental health conditions requiring a diagnosis of “transsexualism” to initiate gender-affirming healthcare. However, it appears that this policy was not implemented, as it was passed just before the US invasion of Iraq in 2003, leading to the overthrow of Saddam Hussein’s regime and subsequent instability. In the process of rebuilding, granting transgender individuals access to gender-affirming healthcare was not a priority for Iraqi officials. Nonetheless, the policy remains in effect on paper to this day.
A Cycle Of Violence:
Despite the existence of this policy, Iraqi transgender individuals have reported that the Committee responsible for diagnosis does not actually exist, making it challenging to obtain a diagnosis and begin the transition process. This is due to a lack of qualified and understanding psychiatrists who have knowledge of the complexities surrounding transgender identities and lack biases based on socio-religious beliefs. Furthermore, the limited number of physicians willing to provide follow-up hormonal replacement therapy, the initial medical step in transitioning, poses a significant barrier for similar reasons. As a consequence, transgender individuals in Iraq who desire gender-affirming healthcare often opt to initiate hormonal replacement therapy in their own homes and subsequently pursue surgeries in neighboring countries such as Iran or Turkey, where such procedures are available. However, even those who possess the privilege of completing their medical transition encounter difficulties in obtaining legal recognition of their gender from the government. Although the Ministry of Health guidelines advocate for including a civil servant in a committee dedicated to facilitating legal gender recognition post-surgery, the Committee does not presently exist.
Moreover, acquiring gender-affirming healthcare through government hospitals is exceedingly challenging. Consequently, individuals seeking gender-affirming healthcare outside the confines of the government system reside within a legal grey area, as Iraqi legislation lacks explicit procedures for acquiring legal gender recognition, with only a fleeting mention in the Ministry of Health guidelines. Consequently, the absence of regulations or ineffective implementation has predictable repercussions, namely marginalization, susceptibility, and discrimination against transgender individuals in Iraq. In recent years, the occurrence of social attacks against this population has skyrocketed, with a substantial number of incidents remaining unpunished due to the authorities’ failure to investigate and prosecute the perpetrators.
A prime example of this is the 2022 murder of Doski Azad, an influential transgender woman, seemingly labelled an “honour killing” by the media. As of now, her brother, the primary suspect, has not been apprehended and is believed to have fled the country. This episode epitomizes the prevalence of intersectional violence targeting transgender individuals in Iraq, beginning with limited access to gender-affirming healthcare and extending to obstacles encountered in securing legal gender recognition, as well as encompassing violence both in society and within families. The lack of action on the part of the state in safeguarding transgender individuals, and in some instances, actions that incite hostility, exacerbate this situation. Should the proposed amendments be implemented, the effect would further legitimize and perpetuate this vicious cycle. Transgender individuals would confront criminalization, while gender-affirming healthcare would be entirely prohibited.
Consequently, their already constrained access to healthcare would be impeded, as the few healthcare providers willing to offer support may be deterred by the legal ramifications imposed by these amendments.
A Law Based on What?
Concerning religious demographics, Iraq is primarily Muslim, with an estimated 95 to 98% of the populace identifying as such. Among the Muslim population, the Shia sect constitutes the majority, comprising roughly 55 to 40%, while the Sunni sect constitutes a smaller percentage. The remaining portion of the population comprises various religious minorities, including Christians and Yazidis. The laws and Constitution in Iraq stipulate that legislation must adhere to Islamic principles while allowing religious minorities to address civil matters by their religious interpretations. The proposed amendments by Shia parties in Parliament assert their foundation in Islamic Sharia law. However, the specific interpretation of Sharia upon which these amendments, which criminalize transgender individuals, are based is largely un-Islamic.
Since the 1980s, scholars from both Sunni and Shia backgrounds, such as Khomeini and Al-Sistani for the Shia sect, as well as Al-Azhar in Egypt for the Sunni sect, have engaged in extensive deliberations regarding the permissibility of gender transitioning within Islam. Given that this issue is relatively new within the realm of healthcare, scholars have adapted existing Fiqh principles to address the matter. These principles include the concepts that “necessities permit what is otherwise prohibited,” “Allah does not afflict anyone with an ailment without providing a cure,” and “changing the creation of Allah is forbidden.”
By collectively considering these principles, scholars have concluded that transgender individuals are considered to have a mental illness for which seeking treatment is their entitlement. It is seen as incumbent upon Muslims to seek a cure. However, scholars have contrasting viewpoints regarding the appropriate form of treatment. Some advocate for gender-affirming healthcare as the solution, viewing being transgender as a necessity that would allow for an exception to the prohibition on altering Allah’s creation. Conversely, others disagree and regard it as a mental illness that should be solely addressed through psychological treatment, with surgical interventions being reserved solely for individuals with biological conditions, such as intersex people.
Nonetheless, a consensus among scholars overwhelmingly supports the notion that transgender individuals should not be penalized for their condition, as it is not within their control. Instead, they should be guided towards appropriate treatment options to address their condition and facilitate their reintegration into society, calling on society to tolerate what the scholars view as people who are ill. Therefore, claims made by Members of Parliament (MPs) that the proposed amendments are based on Islamic Sharia seem to be rooted in their own interpretations rather than the consensus of respected scholars. Consequently, these amendments, which criminalize transgender individuals, are deemed unconstitutional as they defy Article 2 of the Constitution due to their inconsistency with Sharia, which does not advocate for punishment but promotes tolerance and even approves access to gender-affirming healthcare in some instances, provides evidence of their violation.
Moreover, from the perspective of religious minorities in Iraq, a clear example of how these amendments fail to align with religious beliefs regarding transgender individuals can be seen in Case No 934/2011 from the Court of First Instance in Kirkuk. In this particular case, an Iraqi transwoman sought legal recognition of her gender following her completion of medical transition. As a member of the Chaldean Catholic Church, the Court was obliged by Iraqi law to consult with the Church. The Church’s response stated:
“The Church’s High Council has thoroughly examined the petitioner’s gender transition. According to the Church’s perspective, there are no religious grounds to deny the petitioner’s right to change their gender from male to female.”
Consequently, the implementation of these amendments, which are purportedly “religious-based” by some proponents, poses a risk of perpetuating inequity among transgender individuals in Iraq. This potential scenario would violate Article 14 of the Iraqi Constitution, which guarantees equal treatment under the law for all citizens, irrespective of their religious affiliation. It would subject all Iraqi citizens, regardless of their personal religious beliefs, to legislation that inaccurately reflects their beliefs.
Additionally, it should be noted that the proposed amendments were not subject to consultation with the Ministry of Health, the entity responsible for enforcing the ban on gender-affirming healthcare. This lack of consultation directly contradicts the current policies of the ministry and the expert medical opinions held in Iraq. These opinions, similar to those expressed by Islamic scholars, consider transgender identity to be a “mental disorder” necessitating medical treatment rather than punishment. Prohibiting healthcare services for this specific group would violate the fundamental right to access healthcare, as protected by Article 31 of the Constitution. This violation, in conjunction with Article 14, upholding the principle of equality, would not only impede healthcare access but also result in discrimination against a particular group.
In conclusion, the proposed amendments aimed at transgender individuals in Iraq contravene the core principles of Islamic Sharia and fundamental human rights, as protected by the Constitution. By criminalizing transgender identity itself, these amendments propose a dangerous legal trajectory. Consequently, the Iraqi Supreme Constitutional Court can challenge this trajectory based on the violations above. In the event of implementation, the Cairo 52 legal team, in collaboration with partners in Iraq, stands ready to initiate constitutional challenges on the grounds outlined.
Rather than implementing provisions of discrimination and engaging in a protracted legal battle, the Iraqi government can choose to fulfil its constitutional and international obligations. Instead of punishing transgender individuals, Iraqi authorities are urged to align themselves with contemporary global standards by reforming their medical policies to eliminate violence against transgender people that arises from intersecting factors. This includes guaranteeing legal gender recognition, providing comprehensive training for police officers on transgender issues, and promoting social awareness surrounding transgender individuals. From a religious standpoint, society is called upon to exercise tolerance towards transgender individuals rather than perpetuating the misconception of punishment.
While this article primarily focuses on provisions pertaining to the criminalization of transgender individuals and gender-affirming healthcare, analogous arguments can be made in relation to other criminal penalties, such as the criminalization of same-sex relationships and consensual partner swapping. These amendments violate the constitutional protections of freedom of speech and privacy. Further legal analysis is necessary to underscore the incompatibility of these provisions with the Iraqi constitution.
