Summary:
In Algeria, gender transition is not explicitly criminalized by law, but it is effectively criminalized under penal code articles 333, 338, and 333 bis, which prohibit acts perceived as indecent. NGOs have documented arrests of individuals within the LGBT+ community; however, there is limited accessib
le information regarding the transgender identity of those who have been arrested. The absence of a specific legal framework for gender-affirming healthcare in the country creates the potential for the de facto criminalization of doctors who provide such care, as articles 274 and 264 could be used against them. Furthermore, there is no explicit provision for legal gender recognition, and making changes to civil state contracts, including gender markers, could present theoretical complexities. A prominent legal case involved a plaintiff who sought a gender correction from male to female but was denied. The court justified its decision by citing opposition to Islamic Sharia principles and the necessity to uphold Algerian legal and societal norms. The court deemed gender-affirming healthcare for transgender individuals as being incompatible with human nature, ultimately leading to the denial of legal recognition.
Criminalization:
Defacto: While Algerian law does not contain explicit provisions criminalizing social, medical, or surgical transition, gender nonconformity is de facto criminalized.
Related Legal Articles:
The penal code (Loi n° 82-04 du 13 février 1982):
- Article 338:
Anyone who commits an act against decency is punished with jail between two months and two years and a fine between 500 and 2000 Algerian Dinar
And if the act against decency is an act of homosexuality against someone of the same sex, the punishment is that of jail between six months and three years and a fine between 1000 to 10000 Algerian Dinar
- Article 338:
Any person guilty of a homosexual act shall be punished with imprisonment of between two months and two years and a fine of between 500 and 2,000 Algerian dinars.
- Article 333 bis:
(Act No. 82-04 of 13 February 1982) punishment of two months to two years of imprisonment and a fine of 500 to 2,000 DZD for anyone who manufactures, possesses, imports, pursues, imports to trade, distributes, rents, pastes, exhibits, displays, attempts to display to the public, sells, starts to sell, distributes, or starts to distribute any prints, edits, publications, advertisements, pictures, oil paintings, photographs, originals or templates of the photographs, or the production of anything indecent.
Enforcement:
While there have been no published legal cases pertaining to non-normative gender expression or transgender identity, numerous civil society foundations have reported instances of arrests made against individuals in the LGBT+ community. Notably, in September 2023, a man referred to as “M.H.” was arrested for “promoting homosexuality and sexual perversion on Facebook.” According to Djazairess, he was swiftly convicted and sentenced to 18 months of imprisonment, along with a fine of 10000 DZD.
In 2020, Human Rights Watch documented the conviction of 44 individuals for charges related to “same-sex relations,” “public indecency,” and “endangering others by breaching Covid-19 quarantine measures.” Out of the 44, 42 received one-year suspended sentences, while two men were sentenced to three years in prison and a fine following a gathering that was alleged to be a gay wedding.
An article reported the arrest of two young gay men in Oran for “indecent behavior and incitement to immorality” after publicly announcing their marital bond on Facebook. The article also mentioned a case from 2010 in which an imam and his partner were sentenced for two years in prison and fined 20000 DZD after being caught engaging in sexual activity in a mosque.
Legal gender recognition:
There is no explicit mention of legal gender recognition in the text of the law. The following elucidates the legal framework for modifications made to civil status contracts, as delineated in the civil status code.
Related Legal Articles:
- Article 55:
Change of surname or name entails correction of civil status contracts.
- Article 56:
Any person who invokes a particular reason to change his surname may be authorized to do so within the conditions specified by decree.
- Article 57:
The names contained in the birth contract may be amended in the legitimate interest of the President of the Court at the request of the State Agent petitioned by the person concerned or by his legal representative if he is a minor. The addition of names may be ordered in the same way.
There is a lack of legal literature addressing the specific requirements for changing gender information on civil status documents. However, a procedure exists for the correction of errors on civil status documents, which necessitates the submission of a request to the municipal civil status service along with the relevant document. This procedure encompasses a wide range of aspects related to an individual’s civil status, potentially including gender. Nevertheless, this process is largely impractical for transgender individuals.
The discourse surrounding legal gender recognition primarily remains theoretical and revolves around the argument that transgender individuals should be prohibited from undergoing this process. This contention stems from concerns regarding the numerous legal complications that may arise throughout a transgender person’s lifetime.
Case law in Legal Gender Recognition:
- Decision number 1258812 issued on 04/07/2018 by the Supreme Court: The Supreme Court’s decision was based on the plaintiff’s appeal to change their gender marker on legal documents from male to female. The plaintiff argued that the purpose of the request was to correct an error in their registration, rather than completely altering their gender. However, the court dismissed the appeal, stating that it contradicted Islamic Sharia principles and the legal and societal order in Algeria. Despite a French court order supporting the correction, the Algerian Supreme Court emphasized that foreign laws must conform to local norms as a prerequisite for acceptance. While the court endorsed legal gender correction for intersex individuals, they considered gender-affirming healthcare for transgender people to be against human nature and Allah’s creation. As a result, the plaintiff’s request was denied. The Supreme Court highlighted that the plaintiff had bypassed Algerian legal procedures by turning to a foreign authority, which they deemed fraudulent, thereby upholding the court’s rejection of legal recognition for the plaintiff’s transition.
Gender affirming healthcare:
De facto: Healthcare providers may be subjected to legal prosecution if they offer gender affirming healthcare. In Algeria, there is no specific legal framework in place concerning gender affirming surgeries or any other form of gender affirming healthcare. However, criminalization may still occur due to the following factors:
Related Legal Articles:
The penal code (Loi n° 82-04 du 13 février 1982):
- Article 274:
Anyone who commits a crime of castration shall be liable to life imprisonment.
The perpetrator is sentenced to death if it results in mortality.
- Article 264:
(Act No. 06-23 of 20 December 2006) Anyone who deliberately inflicts injuries on others, beats others, or commits any other act of violence or abuse is punished by 1 to 5 years of imprisonment and a fine of 100,000 to 500,000 DZD, if these types of violence result in illness or total incapacity to work for more than 15 days.
Furthermore, the perpetrator may be deprived of the rights set forth in Article 14 of this Act for at least 1 to 5 years.
If the violence described above results in the loss or amputation of an organ, deprivation of use, loss of sight, loss of sight of one eye, or any other permanent impairment, the perpetrator shall be liable to 5 to 10 years of imprisonment.
If the beatings or wounds deliberately inflicted unintentionally result in death, the perpetrator shall be sentenced to 10 to 20 years of imprisonment.
- Article 39:
No crime
- If the act has been ordered or authorized by law.
- If the act has been motivated by necessity in the case of legitimate self-defense or defense of another, or property belonging to the person or others, provided that the defense is proportionate to the gravity of the assault.
These articles could potentially be employed to penalize physicians who offer gender-affirming healthcare procedures to their patients, ranging from two months of imprisonment to the capital punishment. Despite the complete absence of comparable cases in Algerian legal practice, the feasibility of a defense based on Article 39 of the penal code has been dismissed in research. This defense would have justified medical interventions based on their legality and their essential role in promoting patient wellbeing.
Fatwas:
There are no specific fatwas pertaining to transgender individuals that have been issued by the religious authorities in the country. However, since the country adheres to Sunni Islam, the fatwas issued by esteemed Sunni authorities such as Al-Azhar in Egypt and the Islamic Fiqh Council in Saudi Arabia are considered applicable. These fatwas prohibit transgender individuals from seeking gender-affirming healthcare and restrict sex reassignment surgeries to intersex individuals only.