Summary:
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.
Criminalization:
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.
- Article 226 bis:
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.
- Article 230:
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.
Enforcement:
- October of 2021: In October 2021, two transgender women were apprehended and subjected to mistreatment, which encompassed the infringement of their entitlement to legal representation. Tragically, one of them made a suicide attempt while in police custody. Furthermore, they endured persistent harassment from law enforcement personnel, who compromised their identities by disclosing them to fellow detainees. Consequently, they were relocated to a correctional facility designated for male inmates, where they became victims of dehumanizing acts such as forced nudity, physical assault, and having their hair forcibly shaved, followed by confinement in isolation.
- Maya’s case: On December 12th, 2022, four individuals were apprehended following an anonymous report regarding an assembly of “suspicious individuals” taking place within a private dwelling. Among the detainees were an unidentified homosexual male and Maya, a transgender woman, both of whom were arrested and prosecuted in accordance with article 230 of the penal code. The male offender was sentenced to a term of one year imprisonment, while Maya was handed the maximum penalty of three years. It has been documented that Maya endured instances of torture and sexual harassment at the hands of the law enforcement officers throughout this traumatic experience. She was forcibly subjected to a non-consensual head shaving and confined within a correctional facility designated for male inmates. Subsequently, the appeals court, on February 27th, 2023, decided to reduce her sentence to a period of six months. However, she was not released until March 18th under the conditions of parole.
Legal Gender Recognition:
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:
- Article 63 (Revised by Law No. 88 of 1986 of September 1986):
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.
- Article 64:
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.
Case Law On Legal Gender Recognition:
- Case number 10298/1993: Samia lodged a legal suit in a Tunisian court to seek a modification of her name and gender marker on official documents. The court dismissed the claim, citing non-compliance with Islamic law and societal conventions. Samia appealed the decision, but the higher court sustained the ruling, rejecting the lawsuit.
- Case number 12304/2018: Ryan initiated legal proceedings in the Tunisian court to effect a change of his name and gender on his birth certificate following his transition from female to male. The court, invoking international legal standards and principles, recognized hormonal and surgical treatment as a legitimate and medically necessary requirement for the plaintiff, thus rendering it compatible with Sharia. Consequently, the court granted the modification of the gender marker and name on the birth certificate.
- Case number 38291/2020: The plaintiff filed a lawsuit to update his official records to reflect a correction in gender from female to male. However, the court dismissed the request after a medical examination revealed that the plaintiff possesses both male and female characteristics.
- Case number 36646/2023: The plaintiff filed a lawsuit before the Tunisian judiciary to update his name and gender in official documents to align with the gender correction procedures he underwent in 2014 and 2016. The court recognized that he had been suffering from gender identity disorder since childhood and a hormonal imbalance since a young age. However, the court rejected the lawsuit based on the opinion of the Egyptian Dar Al Iftaa’, which only allows gender change surgeries in cases of urgent medical necessity.
Gender-affirming healthcare:
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.
Fatwas:
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.