Abstract

Excerpted From: Javaid Rehman and Eleni Polymenopoulou, Is Green a Part of the Rainbow? Sharia, Homosexuality, and LGBT Rights in the Muslim World, 37 Fordham International Law Journal 1 (November, 2013) (217 Footnotes) (Full Document)

On June 17, 2011, the United Nations Human Rights Council (“HRC”) passed Resolution 17/19 on “Human Rights, Sexual Orientation and Gender Identity.” The adoption of this first ever resolution within the United Nations has been described as a momentous and historic occasion in the struggle for the rights of Lesbian, Gay, Bisexual, Transgender (“LGBT”) individuals. On that momentous occasion, the HRC expressed grave concern at the violence undertaken against LGBT individuals and reiterated the imperative nature of the application of fundamental human rights for every human being without any form of discrimination. Further, in December 2011, the UN High Commissioner Navi Pillay, with the mandate of the HRC Resolution, presented to the United Nations a report highlighting the disastrous effects of the criminalization of homosexuality. This report was followed by a UN-constituted panel of experts in the following HRC session in March 2012, while a more generalized attitude against homophobia has also been evident within other organs and agencies of the United Nations, particularly the United Nations Education, Scientific, and Cultural Organization (“UNESCO”).

The work of hundreds of activists and experts for the protection and promotion of LGBT rights around the globe leaves no doubt that the repression of homosexuality and queerness is a global phenomenon. Indeed, as highlighted in the HRC 17/19 Resolution, as well as in the High Commissioner's Report and in several other UN Committees' reports, violations of human rights are frequently visited upon LGBT communities, even in the most liberal and democratic states. It is particularly alarming that in 2011, seventy-six states had criminal laws and penal sanctions attached, as a consequence of sexual orientation, to sexual behavior or gender identity. This number increased to seventy-eight in 2012.

A first reading of these statistics suggests that both homophobia and the criminalization of homosexuality are phenomena of global reach. In fact, it is only half of these seventy-eight states that are Muslim-majority or Sharia-compliant states. Yet it seems that there is a certain ““privileged” connection between Islam and the repression of homosexuality. All five states that currently punish same-sex relations by the death penalty are Sharia-compliant: Iran, Yemen, Saudi Arabia, Mauritania, and Sudan. The death penalty is also applied in the northern region of Nigeria, which has predominantly Muslim populations, and the southern parts of Somalia. The most brutal punishments, including lashes and public stoning, as well as arbitrary executions, also occur in Muslim-majority states (namely, Iran, Yemen, Saudi Arabia, Sudan, Qatar, Pakistan, Afghanistan, and Malaysia). Some of the Islamic states that impose life imprisonment do so on the basis of the Sharia injunctions (for example, Maldives). Even the most “tolerant” states still punish the offense of “unnatural intercourse” (Bangladesh). Furthermore, the Muslim-majority states that criminalize same sex relationships have also proved to have the highest levels of homophobia and intolerance towards sexual diversity.

Throughout cultures and traditions, religion has played a considerable role in the repression of homosexuality. Unsurprisingly, many religious scholars of the three monotheistic religions--Christianity, Judaism, and Islam--find homosexuality unacceptable. Divine revulsion features prominently amidst a range of justifications for rampant discrimination and violation of the fundamental human rights of LGBT communities. Nevertheless, it is frequently Islam that is portrayed as “the source of unbridgeable difference,” and the one that continues to prescribe the most serious penalties both in this world as well as hereafter. Furthermore, in the contemporary world, it is arguably faith in Islam that is most likely to contribute to the creation of stereotypes and Islamic extremism.

More alarming is the specificity of the debate in the Muslim world. Homosexual relations have been culturally and historically rooted within the Islamic traditions. And yet, not only do Muslim societies negate LGBT rights, but they sometimes completely refuse to recognize the existence of homosexuals, using religion as an ideological argument for this negation. Culture, tradition, and, ultimately, religious norms are used to sanctify brutal punishments, discrimination, and the exclusion of LGBT persons from society. Government representatives and officials emanating from Muslim-majority and Islamic states openly refer to the Islamic religion as a justification for human rights abuses against queer individuals, treating them publicly as inferior to human beings or simply declaring that homosexuality is a sin worse than murder. In states such as Iran, Pakistan, and Malaysia, LGBT individuals are treated as abnormal and sub-human, police raids constantly occur, and any attempt by the media to advocate for LGBT rights is immediately censored. Furthermore, religious preachers who advocate the incompatibility between Islam and homosexuality, and suggest that homosexuality is against nature, are primarily responsible for the rise of hate speech against LGBT individuals--a hate speech that is particularly visible among youth in both Muslim-majority states and the Muslim diaspora.

When, occasionally, any of these states have amended criminal laws or other discriminatory legislation, the psychological conviction of the unlawfulness and unacceptability of homosexuality within Islam and Muslim societies persists. As a result, LGBT individuals in the Muslim world see their rights massively abused. In the few cases where they can publicly acknowledge their sexuality, they end up marginalized, victims of parental or conjugal violence, absorbed by the countries' sex industries, or self-exiled.

The present article examines the legitimacy and validity of the claims for criminalization of homosexuality and discrimination against LGBT individuals from within the Sharia, as practiced in modern Muslim societies. It demonstrates that several passages of the Qur'an acknowledge homosexuality and celebrate sexual diversity, and that it is therefore inaccurate to suggest there is a prohibition of homosexuality in Islam and to advocate criminalization or adoption of discriminatory practices targeting sexual minorities. Furthermore, it is argued that religious views and societal practices that suppress queerness or discriminate against LGBT persons are not only incompatible with human rights law, but also contradict the fundamental principles of the Sharia. Contrary to most of the established scholarly approaches, this Article argues that the Sharia neither prohibits nor punishes homosexuality. To the contrary, a genuine enforcement of the laws based upon the Sharia in contemporary Muslim societies requires absolute recognition and celebration of diverse gender identities.

The Article is divided into five parts. After these introductory comments, Part I proposes a more rational and contextually-sensitive understanding of the Sharia, and ascertains relevant Sharia principles on the repression of homosexuality. Part II provides an overview of LGBT rights in international law and in the Muslim world, highlighting the politicization of this issue by the Organization for the Islamic Cooperation (“OIC”) member states. Part III explores the regional and domestic standards in the Islamic states, including a cultural reading of these standards, and explains the paradoxical interpretations of the Sharia developed by Muslim scholars with regard to homosexuality. The final section provides a number of concluding observations.

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This Article has examined the validity of the claims for the criminalization of homosexuality, from both an Islamic and international law standpoint. It has proposed that an unbiased and neutral reading of the Qur'an, and an objective understanding of the Sunna, establishes recognition of LGBT rights emphasizing sexual and gender diversity. In so doing, it strongly argues for absolute de jure and de facto equality for LGBT communities.

More specifically, the Article has demonstrated that Islam in its early manifestations provided a more egalitarian and positive attitude towards homosexuality and lesbianism than did the other monotheistic religions (i.e., Judaism and Christianity). It was, however, ironic, as well as disappointing, that over a period of time the inherent egalitarian and progressive spirit of Islam was repressed by subsequent generations of jurists and statesmen. Muslim jurists were not able to differentiate between violence and coerced sex (as prohibited in the Qur'an and Sunna) as opposed to consensual, adult intimacy and sexual relationships. Consensual, adult homosexual relationships were deemed sinful, attracting the most serious of physical and mental punishments. Subsequently, in addition to a misconstrued understanding of the spirit of the Qur'an and Sunna, Muslim societies continue to be deeply patriarchal and profoundly hostile to libertarian values of personal sexual autonomy--an attitude that has weighed most heavily against LGBT minority communities. This Article has equally put the emphasis on the disastrous effects of “traditional” interpretations of Sharia Law for both LGBT individuals (marginalization, exclusion, prostitution, drug use, high number of suicides) and the global population's health. It also has observed that specific advocacy in favor of the prohibition of homosexuality, on the grounds of LGBT people's supposed responsibility for the propagation of the HIV/AIDS virus and other STDs, also violates international human rights law. Today, seven Islamic states (namely, Saudi Arabia, Iran, Sudan, Yemen, Mauritania, and Nigeria) apply the death penalty against homosexuals and in some instances against young persons or juveniles.

Certainly, recent international law trends (most notably, the Yogyakarta principles in March 2007, the HRC 17/19 Resolution in July 2011, the subsequent UN High Commissioner Report in December 2011, and the UN global Panel on LGBT rights in March 2012) have emphasized the need to respect the right to equality for LGBT individuals, and the principle of nondiscrimination on the grounds of sexual orientation. As this Article has demonstrated, however, these initiatives are often subject to political pressure, mainly between the “West” (particularly the United States) and the OIC. The soft law on the matter is not at the slightest taken into account by OIC member states, and the Yogyakarta principles are certainly an optimistic, but not sufficient, step to impose on Muslim-majority and Sharia compliant states an end to the repression of queerness and discrimination against LGBT individuals.

It might be conceded that not all is doom and gloom. Despite the political and economic issues involved and the significant opposition to LGBT rights from the OIC member states, some signs of positive change can be discerned. These signs, along with the global movement for the empowerment of LGBT communities, particularly through the several NGOs and human rights activists working on the matter, are indications of hope for the future. Their efforts, however, as this study has demonstrated, should not be based solely on the implementation of human rights standards, but equally on a thoughtful and matured understanding of the Islamic religion.

Professor of Islamic Law and Muslim Constitutionalism and Human Rights. He was formerly the Head of Brunel Law School, Brunel University, London.

Lecturer in Law, Brunel Law School, London. PhD Human Rights & International Law, University Pierre Mendès France (Grenoble2).