Summary:
The Moroccan legal system lacks specific provisions addressing the matter of social or medical transition for transgender individuals. However, these individuals often encounter de-facto criminalization under Article 498, leading to arrests based on moral charges, discrepancies in gender expression, and involuntary disclosure of their transgender identity. Furthermore, there is currently no established legal framework in place to support gender-affirming healthcare, resulting in limited and challenging access to essential services for transgender individuals. Consequently, some individuals resort to self-medication.
Regarding legal gender recognition, a process was recently instituted in 2021 specifically for intersex individuals. However, this process does not extend to transgender individuals. Although there are no official fatwas issued by Moroccan religious authorities regarding gender transition, Al Mufti Mustapha Ben Hamza opposes it, perceiving it as a threat to Moroccan values. It is important to note that Morocco adheres to the Sunni interpretation of Islam, which generally holds negative views towards transgender identities.
Criminalization:
Defacto: While Moroccan law does not explicitly prohibit social, medical, or surgical transition, transgender and gender-non-conforming individuals face persecution under certain legal provisions.
[a]ny person who commits a lewd or unnatural act with a person of the same sex shall be punished by a term of imprisonment of six months to three years and a fine of 200 to 1,000 dirhams, unless the facts of the case constitute a more serious offence
Enforcement:
- February 26, 2015: On February 26, 2015, a press outlet released a report detailing the apprehension of a transgender woman who had been standing on a street corner with the intent to “display her appeal and entice individuals.”
- June 19, 2015: more than 20 individuals identifying as queer were apprehended and formally accused of “propagating moral degradation.” Usually, those detained on charges related to moral conduct are typically afforded the opportunity to change into attire that aligns with societal norms, in order to mitigate potential bias. However, in this particular instance, the accused were presented to the Public Prosecution authorities while attired in their typical women’s clothing.
- January 1, 2019: Manal, a transgender woman, was involved in a minor traffic accident. The police at the scene of the accident apprehended her due to the incongruity between her gender presentation and the gender designation on her official documents. Furthermore, they infringed upon the kingdom’s privacy regulations by publicizing her personal information on social media, thereby subjecting her to forced disclosure.
- April/May 2020: A gender non-conforming artist faced a targeted campaign subsequent to their participation in an online podcast. Upon receiving violent threats, the artist sought legal recourse by visiting the nearest police station to lodge a complaint. However, they were unexpectedly apprehended on charges of “violating covid restrictions” and “assaulting a police officer,” allegations that were widely recognized as unfounded and regarded as a means to penalize the artist for their non-conforming gender identity and expression. Consequently, they were sentenced to a period of imprisonment lasting four months.
Legal gender recognition:
In 2021, the civil status code underwent revisions with the intention of incorporating a procedure for gender recognition for individuals who are intersex. The regulatory framework governing this process is outlined in the following article:
The permission to give birth to an intersex person is supported by a medical certificate specifying the child’s sex, which is relied on to edit the birth scan, and if there is a change in the sex of the intersex person in the future, by a decision of the competent court.
While the article lacks a formal definition of the term “Khuntha”, it is assumed that the specialized court is established to ensure that individuals assigned one gender at birth, but who develop and identify as the opposite gender during puberty, have the opportunity to legally change their gender marker accordingly. In such cases, individuals are initially designated as either male or female at birth, and they can only obtain recognition of their gender through the endorsement of medical and legal authorities. No such process is possible for transgender people.
Case law in Legal Gender Recognition:
As previously stated, the legal gender recognition process appears to be limited to individuals who are intersex and not transgender. Consequently, the available documented cases align with this observation.
- The case of N.T., 2004: While the accessible digital record does not reflect any documentation of this case, the plaintiff, N.T. speaks openly about her request for legal gender recognition in 2004. N. says that she was born intersex and assigned male at birth, and that the unavailability of gender affirming healthcare in Morocco forced her to seek healthcare in Switzerland. After having undergone surgery, N., then aged 34, filed a request to be recognized as a woman by the Moroccan courts. Her request was rejected. There is no way to independently verify the reasoning for the rejection, as the only public accounts are from the plantiff herself and no Court documents were published publiclly.
- Ruling by the Resident Judge in Ain Beni Mathar, Case N° 437/2012, 14-10-2013: The judge in this case granted the request to modify the gender marker for a minor from female to male. This decision was based on the assessment of a medical report, which confirmed that the child possesses male biological characteristics, including male genitalia, and underwent a surgical procedure to rectify a congenital anomaly. Therefore approving the change of documents for the fact that the plaintiff was intersex.
Gender affirming healthcare:
There is currently a lack of documented instances wherein doctors or medical practitioners have faced legal repercussions for providing gender affirming healthcare. It is important to note, however, that gender affirming healthcare is officially recognized only for intersex individuals.
In Morocco, transgender individuals face limited access to certain gender affirming healthcare procedures, such as hormone replacement therapy. These procedures are typically made available through a handful of trusted doctors who can be reached through community support networks. In the absence of safe access to qualified medical professionals, some transgender individuals resort to self-medicating with over-the-counter hormones.
Fatwas:
Morocco is a Sunni-majority state and, as such, is expected to adhere to the overarching interpretations of religious leaders, which are considered to be Fatwas by Al Azhar (Egypt) or the Islamic Fiqh Council (Kingdom of Saudi Arabia). Although Al Mufti Mustapha Ben Hamza has not issued any official fatwas on the topic, he did reject the idea of transition in an article published in 2017. He argues that “true transition” is impossible and views the concept of gender identity as a threat to Moroccan values, a distortion of the institution of family, and an unwarranted interference in the natural order established by the will of God.