Summary:
On July 1, 2023, Member of Iraqi Parliament Hamdan Al-Maliki proposed a bill suggesting amending the Law Against Prostitution (Law No. 8, 1998) with a wide range of arrangements criminalizing queerness and transness. On April 28, 2023, the bill was passed into law with minor amendments made to the severity of punishments, such as the punishment for queer sexual relations changing from the death penalty to 10-15 years of imprisonment instead. The new legislation threatens every level of trans existence, from explicitly penalizing trans expression and identity to criminalizing gender affirming healthcare.
Prior to the event, de-facto criminalization and a lack of protective laws had fostered a climate of transphobic violence against trans individuals in the country. Although the government does not actively enforce legal action or prosecution, there was widespread support for actions taken by state-affiliated or non-state actors to punish expressions of transgender or gender-nonconforming identities.
The combination of explicit criminalization, repressive legal and policy measures, an inactive judicial system, and the prevalence of violence perpetuated by the state, state-affiliated individuals and non-state actors against transgender individuals has created horrible living conditions for gender non-conforming individuals in Iraq.
Criminalization:
Explicit: Current Iraqi legislation specifically criminalizes transgender identity, expression, and gender transitions. There is also de facto criminalization based on laws pertaining to morality and public honor. Laws curtailing freedom of expression and speech limit the agency of transgender individual and activists in Iraq.
These de-facto legal provisions have been employed to target transgender individuals and are frequently cited as instances of state-sanctioned repression of gender nonconformity, although official documentation of such occurrences is lacking. The introduction of explicit criminalization may change this.
- Article 1 of Iraq’s Law against Prostitution and Sexual Deviance
The following phrases and terms are defined as:
…
Third, Takhanoth (to be transgender), and that includes the intentional practice of imitating women, but is irrelevant for the purposes of acting.
- Article 2 of Iraq’s Law against Prostitution and Sexual Deviance (Previously Article 3)
First, sexual deviance, promoting sexual deviance or same-sex acts, and takhanoth (to be transgender) is forbidden and will be prosecuted according to this law.
…
- Article 401 of the Iraqi Penal Code:
Any person who commits an immodest act in public is punishable by a period of detention not exceeding 6 months plus a fine not exceeding 50 dinars or by one of those penalties.
- Article 403 of the Iraqi Penal Code:
Any person who produces, imports, publishes, possesses, obtains, or translates a book, printed or other written material, drawing, picture, film, symbol, or other thing that violates the public integrity or decency with intent to exploit or distribute such material is punishable by a period of detention not exceeding 2 years plus a fine not exceeding 200 dinars or by one of those penalties. The same penalty applies to any person who advertises such material or displays it in public or sells, hires, or offers it for sale or hire even though it is not in public or to any person who distributes or submits it for distribution by any means. If the offense is committed with intent to deprave, it is considered to be an aggravating circumstance.
- Article 210 of the Iraqi Penal Code:
Any person who willfully broadcasts false or biased information, statements or rumors or disseminates propaganda which, by its nature, endangers the public security, spreads panic among the population and disturbs the public peace is punishable by detention plus a fine not exceeding 300 dinars or by one of those penalties.
The same penalty applies to any person who maliciously obtains or steals any register, printed matter or record that contains anything mentioned in the preceding Sub-Article with intent to distribute, publish or communicate it to others or who obtains any means of printing, recording or publication in order to’ print, record or publish such material.
- Article 431 of the Iraqi Penal Code:
Any person who threatens another with the commission of a felony against his person or property or against the person and property of others or with the imputation to him of certain dishonorable or disrespectful matters or with the revelation of such matters in circumstances other than those mentioned in Article 430 is punishable by detention.
Enforcement:
There are currently no documented cases of transgender individuals being tried by Iraqi Courts for any of the laws. The arrival of new legislation might produce official documentation of arrests and detainment. However, in the past, the existence of ambiguous laws that implicitly criminalize queer expression had emboldened non-state actors and government-funded militias to impose their subjective notions of justice through violence on queer and transgender people.
The majority of gender non-conforming and transgender Iraqis who were arrested and detained often lacked a legal basis for their punishments or the proper authoritative body to carry out their arrests. For instance, LGBTQ+ Iraqis frequently encounter violence from non-state actors, such as militias or state-affiliated security personnel who are aligned with militias. In 2012, a militia established by former Iraqi Prime Minister, Nuri Al-Maliki, known as the League of the Righteous, displayed signs throughout Baghdad containing the names and personal information of 24 individuals accused of engaging in unconventional behaviors, such as having long hair or “appearing” gay, and threatened them with death unless they altered their behavior.
As such, the introduction of explicit criminalization encourages state, state-affiliated and non-state actors to pursue violence against queer and trans people.
Legal Gender Recognition:
Name Change:
Individuals in the Iraqi state are permitted to change their legal names as specified by Civil Status Law. Due to new legislation, transgender people changing their names to gender specific names may face punishment by the state for being transgender. Prior to the introduction of the law many trans people faced aggression from religious and legal members of the civil courts for choosing gender-specific names.
- Article 3 of Iraq’s Civil Status Law No. 65 of 1974:
The Directorate General (DG) shall record facts of birth, death, marriage, divorce, separation, change of residence, renewed registration, issues of military conscripts and their exemptions; acquisition, relinquishment, withdrawal and loss of Iraqi nationality; registration of foundlings, children of unknown descent/parentage, and children of missing and lost persons; corrections of age, change and correction of names, surnames, religion, belief and professions of Iraqis inside and outside Iraq. The DG shall organize for this purpose periodic census/statistics, to be recorded in special records, and the smallest administrative unit in all villages affiliated with DG shall use these statistics as their base line statistics.
Due to the Iraqi government’s sectarian nature, each sect would have to visit its own respective Personal Status Courts to deal with mechanisms like changes to one’s legal name. However, Personal Status Law also specifies that non-Muslims do not need to follow all laws laid out in its legal text:
- Article 2 of Iraqi Personal Status Law of 1959:
1. The provisions of this Law shall apply to all Iraqis unless (they have been) exempted by a special law.
2. The provisions of Articles 19, 20, 21, 22, 23 and 24 of the Civil Code shall apply if there is a conflict of the laws in terms of spatial jurisprudence.
As such, non-Muslim Iraqis act under the purview of their respective religious courts to deal with civil status matters with very few exceptions.
Gender Marker Change:
There have been previous instances of non-Muslim Iraqis changing their legal gender marker, although this has changed for everyone in recent times due to the increasing prevalence of anti-trans hate and new legislation. Gender transitioning is banned under Article 2 of the Law Against Prostitution and Sexual Deviance.
Case law in Legal Gender Recognition:
In accordance with the above, changing gender markers on identifying documents is possible in Iraq under Civil Status and Personal Status Law, as well as through the Ministry of Public Health’s instructions.
- In Decision #934 issued on 25 September 2011, Plaintiff Ms. Chamoun submitted a request for the Bidat Kirkuk Courts to receive her legal identification documents with her proper gender markers. Because Ms. Chamoun is Christian, the court had to refer to the Church’s High Courts which ruled that there were no biblical texts opposing her transition. By virtue of the Church’s decisions, the Court ordered all relevant government administrative bodies to issue all legal identification with the correct gender markers. Ms. Chamoun was married to a woman before the court’s decision and their marriage would be annulled after, due to Article 3 of Personal Status Law which explicitly states marriage occurs between a man and a woman.
Gender Affirming Healthcare:
Allowed by official policy but limited in implementation: In 2002, the Iraqi Health Ministry provided a legal document outlining how to access “gender corrective” healthcare for those suffering from Gender Identity Disorder.
A competent committee shall be established at a State hospital exclusively in each of Saddam Medical City’s Health Services and Yarmouk Medical Services with the task of examining requests for correction of sex submitted by the relevant person or his/her family for persons under 18 years of age with the following specialties:
- Urology.
- Gynecology and childbirth.
- Psychiatry.
- Cytogenetics.
- A legal staff member whose task is to guide and inform the applicant and his/her relatives about the legal effects of the change by assisting the Commission in legal matters in this regard.
- Article 2 of the Ministry of Health’s Instructions for Gender Correction:
The applicant must submit a medical report from a specialist who intends to perform the operation and includes the scientific opinion on the type of sex correction operation in detail.
- Article 3 of the Ministry of Health’s Instructions for Gender Correction:
The applicant shall conduct the following examinations and submit its findings to the Committee provided for in article (1) of these instructions.
Psychological assessment.
(PHENOTYPE) for external genitals.
Examination by ultrasound or other means such as magnetic resonance of the internal genitals and determination of the quality of the genitals.Examination of the following hormones, which are present in both males and females (hormones excreted from the pituitary gland):
Activating the FSH sex glandsLHMale hormone (TESTOSTERONE)Female hormone (PROGESTRON)Hormone discharge result (OESTROGEN)21-HYDROXYLOSE
Examination of chromosomes (genetic chromosomes) to determine the genetic sex.
- Article 4 of the Ministry of Health’s Instructions for Gender Correction:
If, after a clinical psychiatric assessment, it is established that the condition is the result of a gender identity disorder (TRANSEXUALISM), the patient is submitted to the Initial Psychiatric Committee and then to the Psychiatric Appeals Committee. If the patient agrees to perform the correction, the patient shall undergo a rehabilitation treatment program for a period determined by the Committee to adapt to the correction.
- Article 5 of the Ministry of Health’s Instructions for Gender Correction:
The procedure may be performed in a public or private hospital at the request of the applicant or their relatives after the completion of the qualification period until decided by the Committee.
- Article 6 of the Ministry of Health’s Instructions for Gender Correction:
The management of the hospital and the surgeon shall be responsible for performing any sex correction operation contrary to the provisions of the law and these instructions.
- Article 7 of the Ministry of Health’s Instructions for Gender Correction:
The Department of Health shall inform the Recruitment Service and the Civil Status Service who are competent to correct the patient’s sex.
- Article 8 of the Ministry of Health’s Instructions for Gender Correction:
These instructions shall be implemented from the date of their publication in the Official Gazette.
Update: However, it remains uncertain whether these instructions will be repealed or upheld, as the recently enacted legislation by the Iraqi parliament explicitly criminalizes the provision and pursuit of gender-affirming healthcare:
Gender transitions and Gender Affirming Healthcare are explicitly prohibited in Iraq according to the newly implemented Law Against Prostitution and Sexual Deviance. Article 2 prohibits gender transitions, while Article 6 imposes penalties on both transgender individuals and healthcare practitioners involved in the seeking or provision of gender-affirming healthcare.
- Article 3 of Iraq’s Law against Prostitution and Sexual Deviance (Previously Article 2)
…
Third, changing the biological sex of a person based on desire or sexual orientation is forbidden with the exception of surgical intervention to treat birth defects that can ensure [an intersex person’s] sex as either male or female after a judicial decision based on the Ministry of Health’s regulations.
- Article 7 of Iraq’s Law against Prostitution and Sexual Deviance (Previously Article 6)
First, any person who engages in any activity relating to Takhanoth (being transgender) or alluding to it is punished with imprisonment for no less than a year and no more than 3 years or with a fine no less than 5,000,000 Dinars and no more than 10,000,000 dinars.
Second, any person who changes their biological sex or helps in doing so is punished with no less than a year of imprisonment and no more than three years. The same punishment applies to any doctor or surgeon that performs surgeries that go against what is written in this law.
Fatwas:
Iraq’s sectarian nature gives rise to multiple religious sources from different sects issuing various fatwas with divergent opinions on transgender expression.
- According to fatwas by prominent Shi’ite clergy members and figures in Iraq, such as Al Sayyed Sistani, transgender individuals who are not also intersex are not permitted to undergo gender-affirming healthcare. Al Sayyed Sistani maintains that a person’s identity and feelings do not play a role in determining their eligibility for transitioning under Islamic Law. The sole determining factor is whether the individual is intersex and exhibits a “medical need” for transition.
- In 2022, the Kurdish Council on Fatwas argued that any form of transitioning goes against Islamic law. They argue that altering one’s gender would involve changing God’s originally perfect design and hold healthcare practitioners accountable for administering such treatments.
Sunna Iraqis might also adhere to the Fatwas of Sheikh Al Azhar in Egypt or the Islamic Fiqh Council.