'Is Green a Part of the Rainbow? Sharia, Homosexuality and LGBT Rights in the Muslim World' by Javaid Rehman & Eleni Polymenopoulou
discusses
the legitimacy of the claims for the criminalization of homosexuality under Sharia law. It submits that discrimination against LGBT individuals and repression of homosexuality are incompatible not only with human rights law, but also with the Sharia and the essence of the Islamic religious scriptures. In the view of the authors, a more thoughtful reading of the Qur’an and the Sunna affirms the compatibility of religion and sexual diversity, and the Qur’an, contrary to common belief, recognizes gender identities, and embraces sexual diversity. A contemporary approach to Sharia should complement international law standards on sexual minorities’ rights in order to achieve a sustainable change in Islamic state practices. In this respect, the paper suggests that the recent initiatives within the UN, including Resolution 17/19 on sexual orientation (14 July 2011), represent positive, though insufficient, steps for the implementation of LGBT rights in the Muslim world. An approach to LGBT rights, which takes into consideration the compatibility of religion and sexual diversity is necessary, not only for the Muslim states to comply with international human rights law, but also for the international community to promote the idea of human dignity and equal respect for human beings and cultures.
The authors note that
A change of the traditional Islamic views on the matter of homosexuality is certainly a
gradual and long-term process: the “traditional” interpretation of the Islamic scriptures benefits both from the authority of established Islamic scholars, who promote discrimination and stereotypes by excluding LGBT individuals from the Islamic Ummah, but also, from the widespread censorship of opposite views. However, traditions change, and should be subject to change, when they are contrary to international human rights standards. A distinction should be made here. On the one hand, are the states, which impose torture and death penalty for homosexual behavior or same-sex relations (sodomy and related offenses). On the other hand, there are states, which do not impose torture or death penalty for such activity, but do maintain penal laws criminalizing homosexual practices and related behavior. Furthermore, there are states, which do not even regard homosexuality and lesbianism as attracting any form of criminal sanctions, but nevertheless remain reluctant to include sexual orientation as valid grounds for the nondiscrimination principle.
In the last years, however, several Muslim states have started reformulating their harsh domestic laws. In 2010-2011, for instance, the death penalty for homosexuality was abolished in some OIC member states, namely, the UAE, Afghanistan, and Iraq Additionally, many others have, at least formally, have abolished laws on gender and
sexual expression over the last decade, namely, Burkina Faso, Chad, Côte d’Ivoire,
Djibouti, Gabon, Guinea Bissau, Mali, Niger; Bahrain, Indonesia, Jordan, Kazakhstan,
Kyrgyzstan, Tajikistan and Turkey, excluding the Turkish Republic of Northern Cyprus;
Albania and Azerbaijan; and the Suriname in the Caribbean). Iran, in 2012, also
amended its criminal code: execution by stoning has been abolished, and some mitigating circumstances have been introduced in the criminal code, that could save some LGBT individuals from the application of the death penalty.
One can also identify similar positive trends in Muslim states domestic jurisprudence. On the one hand, several recent judgments reveal a progressive understanding of issues related to gender orientation. For example, in May 2012, the Pakistani Supreme Court issued its judgment in the famous “trans-gender” case, acquitting two persons who had been accused for same-sex marriage – one of them being a transsexual, who had already had a sexual assignment operation. On the other, domestic courts have shown a more decisive position against homophobia. For example, in July 2012, a domestic court in Morocco, indicted an Islamic cleric on the grounds of incitement to hatred. The cleric was calling for the murder of a journal editor who was, in his turn, urging for larger sexual freedoms in the
country. Despite their weaknesses, this type of judgments, mark the beginning of a
more modern understanding of Islam, and may therefore provide fertile ground for further social and legal transformations. Other domestic courts jurisprudence, particularly from these states, which have had the experience of colonial domination, could also play an essential role for future legal amendments. The judgment of the Delhi High Court for example, in the Naz Foundation case, could be a useful paradigm for the future empowerment of sexual minorities in the Muslim world.
