Egypt’s Economic Courts: Homosexuality is Explicitly Criminalized Under Cybercrime Law

By: Nora Noralla

Date: 24/01/2024

In recent judgements obtained through Cairo 52’s pro bono legal representation program,  the Economic Court in Alexandria, through multiple rulings, has emphasized that Article 25 of the Cybercrime law explicitly criminalizes homosexuality. The new interpretation Is a significant judicial move from a de-facto criminalization of LGBTQ+ identities to an explicit one. Article 25 specifies that violation of social and family values is punishable by a minimum of six months imprisonment and a fine ranging from 50 thousand EGP to 100 thousand EGP.

The vagueness of this Article has raised controversy as it lacks a clear definition of what constitutes family and social values, leaving it susceptible to abuse. The Economic Court, in various cases, has endeavoured to interpret this Article in conjunction with Article 9(C) of the Anti-Sex Work Law 10/1961. Up until 2020, Egyptian authorities primarily relied on Article 9(C) and the Anti-Sex Work Law 10/1961 to prosecute LGBTQ+ individuals. The critical charge here is “debauchery,” which legally refers to male sex work. However, interpretations by the Court of Cassation in the 1970s undermined the requirement of financial exchange as an essential element of the crime, instead considering habitual engagement in the act and indiscriminate participation with multiple partners as sufficient grounds for prosecution.

This expanded the scope for the prosecution of individuals for alleged involvement in sex work, even if they were not actively engaged in it. Starting with the 1990s, Egyptian authorities gradually extended the use of the Anti-Sex Work Law 10/1961 to target queer individuals assigned male at birth. Nonetheless, the Court of Cassation and lower courts consistently maintained that those prosecuted were sentenced for engaging in sex work rather than solely due to their queerness. However, certain courts exhibited evident bias in their judgments based on the individuals’ identities.

In 2018, Cybercrime Law No. 175/2018 was enacted, containing several articles that could curtail personal freedoms on the internet, with Article 25 being particularly noteworthy. During the parliamentary discussions on the law, several Members of Parliament advocated for its use in combating what they perceived as a dangerous new frontier: “Cyber immorality and prostitution.” Subsequently, in 2019, the Public Prosecutor established the Communication, Guidance, and Social Media Department (CGSMD) within the Monitoring and Analysis Unit (MAU) to monitor online users for immorality, among other activities, as reaffirmed in public statements by the Public Prosecutor’s office in 2020:

It is now widely recognized that our nation faces not only the traditional land, sea, and air borders but also a new access point commonly called the cyber border. This emergence necessitates significant legislative, administrative, and judicial changes to effectively address and safeguard websites, treating them as we would any other border. It is vital to emphasize that these measures should not infringe upon or curtail individual freedoms but rather address a phenomenon being exploited by malicious entities seeking to dismantle our society and undermine its core values and principles.

Following a transitional phase, the jurisdiction over crimes committed in the digital sphere was officially transferred to the Economic Courts under the Cybercrime Law. Consequently, offences involving individuals from the queer community arrested through dating applications like Grinder or social media platforms such as Facebook will be processed and tried in the Economic Courts under the provisions of the Cybercrime Law.

Initially, the Economic Courts tended to interpret cases of debauchery in accordance with the framework set forth in the Anti-Sex Work Law. They treated these cases as instances of sex work, seeking evidence to substantiate the two fundamental elements outlined in the aforementioned legislation. However, a recent shift has occurred, with some judges beginning to interpret Article 25 in a manner that explicitly criminalizes homosexual acts without the need to establish the core elements of debauchery as stipulated in the Anti-Sex Work Law.

One notable judgment handed down by the Alexandria Economic Court in November 2023 exemplifies this evolving trend. In this case, a gay man was arrested through Grindr on charges of inciting and engaging in debauchery under the Anti-Sex Work Law, misusing telecommunication means, and violating family and social values under the Cybercrime Law. The evidence presented was weak and failed to establish that the crime of debauchery, as defined by the Anti-Sex Work Law, had been committed. Consequently, the Court diverged from a de facto criminalization of homosexuality and focused solely on the interpretation of Article 25 of Cybercrime Law, leading to a conviction for explicitly engaging in homosexual acts. Mariam Chahine, a lawyer from Cairo 52’s Legal Unit, emphasized the risks associated with Article 25 in these instances:

 

The judge’s misinterpretation of the legal Article titled “Violation of Egyptian Family Values” provides insight into distorting legal provisions to endorse a controversial religious interpretation that condemns individuals who identify as homosexual. The term “controversial” is used here because the provision is malleable, ambiguous, and open to various interpretations, which is unsuitable for criminal legislation and should be clear in nature to avoid confusion on its implementation.

 

The Court conducted an examination into the interpretation of “debauchery” under Article 25 of the cybercrime law by considering the application of both constitutional and customary Sharia law. In order to interpret Article 25 of the Cybercrime law as explicitly criminalizing homosexuality, the Court referred to Articles 2, 10, and 47 of the Constitution. Article 2 states that “Islam is the religion of the State… The principles of Islamic Sharia are the principal source of legislation,” while Article 10 emphasizes the importance of the family as the foundation of society, based on religious, moral, and patriotic values and the State duty to protect it. Furthermore, Article 47 commits the State to safeguard Egyptian cultural identity, which has diverse civilizational origins.

As Sharia is the primary source of legislation, the Court invoked Quranic verses which condemn homosexuality as a sin in Islam:

 

“We also (sent) Lut: He said to his people: ‘Do ye commit lewdness such as no people in creation (ever) committed before you? For ye practise your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds.'” (Verses 80 and 81 of Surah Al-Araf)

 

“The angels said, ‘O Lot, indeed we are messengers of your Lord; [therefore], they will never reach you. So set out with your family during a portion of the night and let not any among you look back – except your wife; indeed, she will be struck by that which strikes them. Indeed, their appointment is [for] the morning. Is not the morning near?’ So when Our command came, We made the highest part [of the city] its lowest and rained upon them stones of layered hard clay.” (Verses 81 and 82 of Surah Hud)

 

Consequently, the Court concluded that according to the Constitution, the State has an obligation to safeguard Egyptian social, cultural, and family values. When interpreting these values in the context of a “debauchery” charge, the Court employed the Islamic Sharia interpretation of the aforementioned verses to align with the legal understanding that homosexuality is considered a sin in society. Accordingly, the charge of “debauchery” under Article 25 of the Cybercrime law transformed into an explicit charge of homosexuality:

 

This is the matter from which the Court concludes that the practice of debauchery in itself, without the need for advertising or incitement, and whether with or without financial compensation, represents a violation of the values ​​and traditions of Egyptian society, which are based on adherence to religion, preserving morals, and working to stabilize the Egyptian family. Moreover, preserving Egyptian culture from the impurities of Western cultures that have reached us through modern social media, the most famous example of which is homosexuality. 

 

This interpretation, along with its various manifestations, has also been observed by Cairo 52’s Legal Unit in other cases from the Economic Courts in Tanta City and Assiyut Governorate, where the acts of homosexuality itself are deemed incompatible with Abrahamic religions, thereby infringing upon family and social values as outlined in Article 25. This violation is considered self-evident, obviating the need to establish the occurrence of the crime of “debauchery” as stipulated in the Anti-Sex Work Law. Chahine commented on these interpretations and the judgement of the Alexandria Economic Court as follows:

 

This ruling is one of the most dangerous judgments in recent times regarding cases involving debauchery in the Egyptian judiciary. It disregards the crucial elements of the crime of engaging in debauchery, as defined by previous decisions of the Court of Cassation and the explanatory memorandum to Law No. 10 of 1961. Instead, it uses an unusual and complex interpretation, directly connecting the act of practising debauchery with homosexuality. New interpretations of the Constitution, Sharia law, and religious texts achieve this.

 

Furthermore, it is worth noting that this particular interpretation, which includes LGBTQ+ individuals within the scope of moral clauses, has gained traction within the Egyptian judiciary in recent years. In 2015, the Cairo Administrative Court established a legal precedent where the mere suspicion of homosexuality could be used as a basis for invoking the morality clause in Egypt’s migration laws, resulting in the denial of entry and deportation of queer foreigners. In 2016, the Administrative Court in Cairo applied a similar reasoning as the one adopted by the Alexandria Economic Court when interpreting Article 2 of the Constitution to prohibit legal gender recognition for transgender individuals. The Court emphasized that Islamic jurists reject gender-affirming healthcare and the subsequent legal gender recognition that results from it. Consequently, the Court rejected the plaintiff’s request for legal gender recognition, citing that his actions violated Islamic Sharia and, therefore, the Constitution. Likewise, in 2023, the Supreme Administrative Court of Egypt ruled that morality clauses in the country’s civil service law encompassed homosexuality, thereby allowing for the termination of government employees on such grounds.

Consequently, the implications for the LGBTQ+ community in Egypt are multifaceted. Firstly, the potential widespread acceptance of this new interpretation of the “debauchery” charge may render it increasingly challenging to secure acquittals in the near future, as courts often consider being present on platforms such as Grindr as sufficient evidence of homosexuality.

Secondly, an anticipated increase in bias and discrimination within the legal system may be observed, as law enforcement agencies and prosecuting bodies may shift their focus from proving “debauchery” under the Anti-Sex Work Law to establishing it under the Cybercrime Law. This shift in strategy would likely lead to heightened scrutiny and emphasis on individuals’ queer identities.

Thirdly, these rulings underscore the pressing need for an effective strategic litigation approach. It is essential to recognize that the lower courts are responsible for issuing such interpretations, necessitating the examination of the matter by the Court of Cassation to determine the legal validity of this interpretation. Consequently, it becomes imperative to prepare for this eventuality and advocate for a favourable ruling from the Court of Cassation that rejects such interpretations, thereby establishing a nationwide legal principle applicable in all courts.

Fourthly, there is an urgent need to develop new defence strategies explicitly tailored to the Cybercrime Law. The utilization of this law, instead of the Anti-Sex Work Law, has become increasingly prevalent in recent years. As new courts and laws emerge, the demand for effective defence strategies persists. Thus, lawyers may engage in extensive legal experimentation during the forthcoming period to ascertain what approaches yield favourable outcomes in this evolving legal landscape. It is imperative to monitor and disseminate knowledge regarding successful strategies to ensure the implementation of an effective nationwide framework.

Lastly, while these interpretations present a significant risk to Egypt’s LGBTQ+ community, they can also serve as valuable evidence for future advocacy efforts against Egypt’s mistreatment of LGBTQ+ individuals. Up until now, it has been challenging to establish that Egypt specifically targets LGBTQ+ people based on their identity rather than for their involvement in sex work, a stance that Egypt has maintained on the international human rights stage for a prolonged period. The Egyptian government consistently maintained that its legal system does not criminalize LGBTQ+ individuals and that the laws in place merely address issues related to sex work, similar to legislation in Western countries. Consequently, it was difficult to provide legal proof of the prosecution of LGBTQ+ individuals solely based on their identity. These interpretations, however, alter this narrative by revealing that the Egyptian judiciary indeed believes that LGBTQ+ individuals should be prosecuted solely for their identities, regardless of whether or not they are involved in sex work.

In the coming years, Egypt is expected to reinforce its legal framework by relying on interpretations of morality clauses within Egyptian laws, which will further curtail the human rights of LGBTQ+ individuals. Notably, the enactment of the Cybercrime Law will serve as an additional instrument that is likely to be more frequently employed in cases involving queer individuals, aiming to secure convictions. Consequently, it is crucial to closely monitor these developments in order to support the Egyptian LGBTQ+ movement in devising and implementing effective strategies to combat the rapid rise of anti-LGBTQ+ legal measures in the country.