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Tunisia effectively criminalizes gender identities and expressions that deviate from societal norms through the application of Penal Code Articles 226 bis and 230. The enforcement of these provisions disproportionately targets transgender women. The absence of a comprehensive framework for legal gender recognition in Tunisia has led to inconsistent rulings in court, which often rely on the personal views of the judges. The courts appear to prioritize strict adherence to the binary understanding of gender above all other considerations. Furthermore, interpretations of Sharia law heavily influence judicial decisions, leaving room for considerable variation based on individual judges’ personal beliefs and interpretations. Access to gender-affirming care faces challenges due to limited information and resources. However, certain procedures can be obtained through well-informed and reliable medical professionals.

De-facto: While Tunisia does not have specific laws that criminalize social, medical, or surgical transition, it is important to note that gender nonconformity is effectively criminalized in the country. This is largely due to the application of provisions against homosexuality and debauchery in the Penal Code.

Shall be punished by six months’ imprisonment and a fine of one thousand dinars any person who publicly undermines public morality or morals by gesture or word, or intentionally disturbs others in an indecent manner.

Anyone who publicly draws attention to an opportunity to commit debauchery, by means of written, recorded, audio or visual, electronic or optical messages, is liable to the same penalties as those set out in the previous paragraph. 

Sodomy or lesbianism, if it does not fall within any of the cases provided for in the preceding articles, is punishable by three years’ imprisonment. 

There is a lack of specific legislation governing the legal processes for gender recognition in Tunisia. Nevertheless, any modifications concerning an individual’s civil status, such as their name or gender markers, are carried out through a court decision. These necessary corrections, along with the corresponding court ruling numbers, are duly recorded in the civil register. The legal framework that regulates this procedure is as follows:

Civil Status Organization Act:

The President of the Court of First Instance of the region where the fee was written, or his deputy authorized the reform of the civil status fee. If the request is not issued by the public prosecutor, it must be brought to his attention. The request for the reform of civil status fees issued during a cruise, abroad or in the military is made by the President of the Court of First Instance of the area where the demarcation took place or by the Deputy. This applies to death fees, which are prescribed in chapter 46 of this Act. The reform of the civil status fee, which is written or drawn by diplomatic agents and consuls, is authorized by the President or Vice-President of the Court of First Instance of Tunisia. The request to remedy the verdicts establishing birth or death is also considered by the same court which authorized the birth or death. The provisions of the reform cannot be invoked against others. Anyone who deliberately lies in order to obtain a judgement reforming a civil status fee shall be liable to one year’s imprisonment and forty hundred dinars’ imprisonment.

The provisions and decisions of the reform shall be promptly directed by the State Procurator for Civil Status in the area where the reformed fee is drawn. The texts of the judgements shall be drawn in the books.

The lack of a legal framework regulating legal gender recognition allows judges to interpret existing laws, jurisprudence, and “the objectives of Sharia” as the basis for their individual rulings, leading to inconsistent decisions that are influenced by the judges’ personal sympathies. Moreover, the absence of recognition for a third, neutral, or non-binary gender marker on legal documents makes the process of changing one’s gender marker challenging for intersex individuals. It is not feasible to modify one’s gender marker on identity papers without undergoing surgery to align all of one’s sexual characteristics with either one of the two binary genders.

There are no explicit legal provisions prohibiting medical professionals from offering gender affirming care to their patients, although doctors often lack knowledge regarding appropriate treatment protocols and choose to abstain from providing such care.

We have not come across any legal cases where a doctor has faced legal action for delivering gender-affirming care to their transgender patients. Testimonies from transgender individuals in Tunisia indicate that certain procedures (e.g. hormone replacement therapy, top surgery) are available through private practices managed by knowledgeable and safe doctors, who can be located through community support networks. However, private healthcare can be costly and inaccessible for some individuals, leading them to resort to self-medication with over-the-counter hormones as a means of treatment.

There have been no public fatwas issued by the Mufti of the Tunisian Republic regarding the matter of transitioning. Given that Tunisia is a Sunni-majority country, it is generally assumed that it adheres to the overarching interpretations of religious leaders, such as the fatwas issued by Al-Azhar (Egypt) or the Islamic Fiqh Council (Kingdom of Saudi Arabia). However, it should be noted that these fatwas are considered as guidelines for judges, as the interpretation of the objectives of sharia law falls under their jurisdiction on a case-by-case basis. Judges are not obligated to follow the rulings made by Dar Al Iftaa or other institutions.