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Gaza and the West Bank have distinct Penal Codes, each with its own set of laws. While transgender identities are not explicitly criminalized in either region, laws against homosexuality are seldom enforced. However, access to gender affirming healthcare is severely limited, mainly due to the destruction of hospitals in Gaza and the ongoing occupation of the remaining Palestinian territories. Israel’s claims of providing such care for transgender Palestinians are disputed in terms of their scope and effectiveness. Additionally, legal gender recognition is a complex issue due to the presence of multiple legal jurisdictions, leaving transgender individuals without a clear process to amend their official documents. The portrayal of Israel as a safe haven for LGBTQ+ Palestinians is criticized as a form of pinkwashing, given that the occupation actively marginalizes Palestinians as a whole, including those who identify as queer or transgender. These individuals continue to face oppression under the occupation.

De facto: Gaza and the West Bank have different Penal Codes.

In Gaza, the British Mandate Criminal Code Ordinance, No. 74 of 1936 remains in effect. Although it does not explicitly address transgender individuals or non-normative gender identities and expressions, transgender people can potentially face legal action under provisions safeguarding public morals or sodomy laws.

Any person who: 

  1. has carnal knowledge of another person outside of the natural order or
  2. has carnal knowledge of an animal or 
  3. permits (he or she) a male to have carnal knowledge of himself or herself outside the natural order

Is considered to have committed a felony and is punished with 10 years of jail. 

However, there is limited evidence of these laws being actively enforced. In the West Bank, the Jordanian Penal Code of 1951, as amended in 1960, is still applicable. This code does not criminalize sexual acts between individuals of the same sex. It is important to note that under “enclave law,” Israeli military ordinances have been implemented in the West Bank, thereby extending their jurisdiction to all Palestinians residing in the region.

We have not been able to identify any instances in which transgender individuals have been arrested, detained, or subjected to legal proceedings due to their gender identity and expression, even when considering the aforementioned articles.

The Palestinian personal status law currently enforced in the West Bank lacks provisions for amending or modifying personal status information, including changes to the name or gender of an individual. It is important to note that this law is not applicable in Gaza, as it falls under the jurisdiction of the Egyptian Law on Family Rights. Additionally, individuals residing in territories under Israeli occupation are subject to Israeli law. The presence of multiple legal jurisdictions in the region not only complicates the tracking of gender recognition availability and legality, but also results in the absence of a clear and standardized process for transgender individuals to rectify their legal documents in accordance with their gender identity.

Case law in Legal Gender Recognition:

We have encountered difficulties in both locating and accessing instances wherein a transgender individual pursued legal gender recognition in the Occupied Palestinian Territories.

There are few reports on the availability of gender-affirming healthcare for transgender people in Palestine. While relevant healthcare was previously accessible for intersex individuals in Gaza, it has become unattainable, along with other forms of healthcare, due to the destruction of all hospitals in the region and the ongoing and oppressive occupation. While such services are available inside Israel, few transgender Palestinians can access those services inside Israel due to the restrictions on freedom of movement imposed by Israel in the Occupied Palestinian Territories. Thus, such cases are not representative of the prevailing situation, as this form of healthcare remains inaccessible for many transgender individuals inside the Occupied Palestinian Territories

Strictly on paper, it is easy to compare between the law of the occupation and the multiple legal systems adopted in Palestine, and see a “neat” system that offers some recognition to transgender people and calls them in for asylum on one side; and a patchwork of laws that don’t always acknowledge transgender people on the other side. It is important then to remind the reader that the latter system did not evolve organically, but was pulled together from neighboring countries for functionality against brutal occupation. Here, I find it important to amplify the perspective of a Palestinian Queer Organization: AlQaws, who view the discourse around accepting queer Palestinians as refugees within occupied territories. They critique the discriminatory policies carried out vis-à-vis the Palestinian people, and interrogate the narrative, prevalent in both international and Israeli media, of Israel as a safeguard for LGBTQ+ individuals through the lens of “Pinkwashing”. The organization posits that Israel’s actions contribute to the displacement and sustained persecution of LGBTQ+ Palestinians, and explains that the act of crossing into Israeli territory renders them liable to illegal status, thereby compelling them to endure adverse living conditions in a bid to evade apprehension.