LGBT Rights in Iran

Introduction

The lesbian, gay, bisexual and transgender (LGBT) persons in the Islamic Republic of Iran face considerable discrimination and persecution in the country. Violations of their fundamental rights and discrimination are perpetrated by not only the Iranian government but also the judicial system, non-state actors like communities, families, and schools. Iran’s population is roughly 75million people, based on the realities in other countries with a similar population. Iran’s LGBT community is in the millions. However, due to multiple layers of restrictions and pressures, this community has largely remained invisible and exposed to tremendous suffering in order to conform to stipulated norms. Iranian’s social, religious and legal system is extremely rigid and largely subject to government dictates, given the countries theocratic system.

Every society, directly or indirectly, imposes cultural values and norms. While this value system is determined in the participatory framework in most countries mostly independent of governmental interference and subject to review and change as the society progresses, this cannot be fully said to be the case in Iran. The religious infrastructure in that country produces a legal and political superstructure that is informed by Shia jurisprudence. The product of this ideological system allows little debate and is known for its adherence to stringent religious interpretation (Nayyeri, 2012) .

The penal code in Iran, commonly termed as the Islamic penal code (IPC) is grounded on Islamic religious law, sharia law. It explicitly prohibits same sex relations and imposes various penalties, including execution, as is the case for sodomy, for those found guilty. The evidentiary basis for proving the conduct of same sex relations is often hard to find across most countries that prohibit such sexual relations, but in Iran, a judge may independently convict a person of such crime based on ‘his own knowledge.' The exact figure for the number of Iranians executed for homosexual acts is hard to tell given the difficulties in securing such information, but various estimates put it in the hundreds since the Iranian revolution to hold in 1979 (Shima, 2015) .

As it has already been alluded to, criminal sanctions are not the only problems that homosexuals have to endure in Iran, there exists a vast range of discriminatory and abusive practices that they have to contend with including expulsions from institutions of learning, custodial rape, arrests, and abuse at social gatherings and denial of access to job opportunities. Put simply, a person becomes a pariah with little chances of advancement in their society. This is exacerbated by the absence of legal protection mechanisms for such individuals. For instance, since Iranian law affords parents considerable leeway in punishing their children, persistent and consistent abuse from family members hardly receive state attention or that of the community (International Gay and Lesbian Human Rights Commission, 2015).

An important response adopted by the Iranian government in response to LGBT persons is sexual realignment surgeries especially for transgender persons and other forms of therapy. This response is informed by the government sponsored propaganda that such conditions are disorders that require medical attention. There exists vast evidence of transgender persons being compelled to undergo such surgeries. Even without government coercion such as arbitrary arrests, the ubiquitous social discrimination is an incentive for transgender persons to opt for such surgical procedures and other therapies (International Gay and Lesbian Human Rights Commission, 2015) .

Historical Perspectives

Sharia law has historically been against homosexuality, as evidenced by practices in many other Muslim societies, especially in the mid-east. However, same sex relations have been tolerated in Iran across many historical episodes. Classical Persian poetry is replete with discussions of homosexuality between young males. This tolerance lived into the 19th and 29th-century Persian society; during the Qajar dynasty, consensual relations between adolescent boys and males were quite visible. Boy concubines were a common feature in the King’s court, and he even took some with him during travels (Nayyeri, 2012) .

It was during the Pahlavi era that attitudinal shifts towards homosexuality could be traced. In 1926, during the reign of Reza Shah, the penal code was enacted that criminalized Sodomy, prescribing the death penalty for any person found to be culpable. This would, however, be reversed in 1933 to remove the death penalty and replace it with three to ten-year sentence in prison. At the same time, male prostitution and pederasty were made criminal offenses, and more men were arrested for acts of prostitution than were females. At a time of rampant media censorship in Iran, it was allowed adequate leeway to condemn acts of homosexuality. With the advice of various academics and thinkers within the Iranian society, government purged from the curriculum all homosexual themes including some of the most famous chapters in school at the time. This would later be accompanied by the purging of similar themes in newspapers and domains like poetry.

It was however after the Iranian revolution that harsh measures were enacted against all forms of ‘unorthodox sexual behaviors’ that were deemed immoral and un-Islamic. The new theocratic regime established theocratic courts that issued sentences after summary trials. To assert its authority, the regime targeted prostitutes, drug smugglers, rapists and those indicted of sodomy and adultery. The summary trials did not listen to specific charges leveled against individuals as prescribed by the codified law but entailed a general charge of ‘corruption on earth,' a term denoting a wide range of offenses. Amnesty International approximates that in the first five months of the revolutionary hold on power; about 438 individuals were executed for suspected moral offenses (Nayyeri, 2012) .

The Law of Hudud and Qisas was passed in 1982 by the Iranian parliament which marked the codification of punishments under sharia law. Similar laws were enacted in 1983 and 1991, explicitly codifying penalties for sodomy, homosexuality and other homosexual acts. It was the 1991 act that provided for the death penalty for any acts of sodomy. The judge imposing the death penalty was left to decide which method was most suitable. Most death penalties have however taken the form of execution by hanging. Commenting on this question, the Supreme Leader Ayatollah Khomeini concurred that the judge reserves the authority to determine the mode of execution but suggested ways of doing it including: burning the culprit alive; beheading by a sword; stoning; being thrown off a high place such as mountain with the feet and hands tied or demolishing a wall over the person’s head. However, if penetration did not take place, as observed earlier, each individual would be subject to 100 lashes (International Gay and Lesbian Human Rights Commission, 2015) .

Legal Perspectives

The treatment of the LGBT community in Iran since the Iranian revolution has been subject to considerable international attention and concern. Iran stands as one of the seven countries in the world that continue to impose the death penalty on LGBT persons. Despite widespread evidence of international law violations in the treatment of these persons, Tehran has remained adamant that international conventions to which it is a signatory to do not apply to homosexuals in the country. During the 22nd session of the United Nations Human Rights Council held in Geneva in 2013, the Iranian government dismissed the report presented by the United Nations special rapporteur on human rights on international law violations on the treatment of minorities as baseless. There is however considerable evidence to demonstrate that Iran is in contravention of international law. Of the nine core treaties on human rights, the Islamic Republic of Iran is party to at least five and as such legally bound to comply fully with them. Since Iran is a state party to most of these international treaties, it cannot invoke provisions of internal law to justify its treatment of homosexual persons in the country (International Gay and Lesbian Human Rights Commission, 2015) .

The revised penal code of 2013 that was ratified by the guardian council does not remedy the discrimination meted on homosexual persons in Iran. The code in many ways perpetuates the discrimination occasioned by prior legal regimes. Some of the punishments that persist against gay persons include: Flogging for same sex relations. It entails severe beating using a thread leather strap, which should be roughly one meter in length and 1.5 centimeters in width. Flogging is used to punish specific same sex relations such as sexual contact between men that do not entail penetration but involving sexual organs, referred to as Tafkhiz. Flogging for such sexual crimes is supposed to be more vigorous than that meted for alcohol consumption. Lesbianism- described as the placement of female sexual organs of another woman- is punished with 100 lashes. The code further criminalizes kissing or touching between members of the same sex as a result of lust. All these crimes are punished by flogging irrespective of the couple’s sex. The United Nations describes these acts of flogging as forms of torture that stand against Iran’s treaty obligations (Nayyeri, 2012) .

The penal code also imposes the death penalty for some homosexual relations. This is especially the case for sodomy (lavat), described as penetrative sexual contact between men, and is more harshly punished than similar acts between women. The act, however, does consider whether such acts were consensual leading to differences in punishment between the active and passive participant. Nonetheless, the provision by virtue of imposing harsher penalties on men more than women engages in discrimination on the basis of gender. The code also requires that in instances where sodomy is committed between a Muslim and a non-Muslim, the latter ought to be punished with the death penalty, effectively discriminating persona on the basis of religion (Schabas, 2002) .

While a woman may be liable to a death penalty for acts of lesbianism, this penalty is imposed if the individual is caught for the fourth time. A conviction for the crime of lesbianism is, however, a rare occurrence since there is a legal threshold that at least four male witnesses must be present. In light of the pervasive gender segregation present in Iran, it is hardly the case that this threshold is met. For persons who identify themselves as bisexuals, the penalty imposed will most likely be based on the circumstances. Transgender persons, on the other hand, may be found guilty for same sex relations since their status has no legal recognition. Regardless of the choice of partner, therefore, one can be forced to incur legal penalties. This problem helps shed light on the lack of predictability in the punishment of transgender persons and bisexuals leading to arbitrariness in the imposition of penalties (International Gay and Lesbian Human Rights Commission, 2015) .

As it has been pointed out before, homosexuality is treated as an illness in Iran. Transgender persons are said to suffer from Gender Identity Disorder. Since the state does not make a legal distinction of these people away from the male and female categories, they are taken through a vast array of measures including sex realignment surgery and other treatments. Before undergoing such surgical procedures, psychological treatments are first administered that include neuroleptics and electroshock treatments, which are likely to have mind-altering effects. Reports suggest that if these administrations do not produce the desired effects, then medical professional conclude that the individuals are incurable and therefore recommend sex realignment surgery. These realignments surgeries are legal, after the religious verdict made by Ayatollah Khomeini, the supreme leader, in 1987. Research suggests that the rate of sex reassignment surgery has increased over the ideas, pointing not to individual decisions to undergo the procedure but intensified social coercion.

The success of these surgeries has also been a controversial affair, especially for analysts outside of Iran. There are serious claims that they are haphazardly done with no adequate care leading to complications after the surgeries such as incontinence, resizing of sexual organs, paralysis, and infectious diseases. These charges would suggest further violations of international legal provisions that obligate quality health standards and professionalism in the conduct of such procedures. Further, reports indicate that the aggrieved have had no legal recourse. In a general sense, the treatment of LGBT persons in Iran suggests flagrant violations of international law. Amongst the obligations that the regime continues to violate are:

The Principle of Non-Discrimination

Non-discrimination is an integral part of international human rights law especially under the international covenant on economic, social and cultural rights (ICESR) and the international covenant on civil and political rights (ICCPR). LGBT persons require equal access and treatment under the law and accorded equal protections.

Right to Life

The death penalty imposed on the crime of sodomy negates the norms of international human rights law. Further, international law prohibits what may be deemed as torture or inhuman treatment of persons. Acts such as flogging and social discrimination in areas like employment also violate international legal standards. Other violations include the right to information and consent especially in matters of health.

Sharia Law and Homosexuality

Given the fact that sharia law seems to underlie justifications for the persecution of LGBT persons, it is important that its provisions be given some consideration. The immediate challenge in attaining this objective is getting through the multiplicity of views amongst Islamic religious scholars. Since a majority of Iranians are Shia Muslims, Shia’s interpretations are of particular relevance. 

According to Shia jurisprudence, there are four main sources of sharia law. The most important is the Quran, which is said to be God’s direct revelation. Others include Sunnah (Oral tradition of the prophet), the Hadith, the Aql (Intellect) and the Ijima (agreements of Islamic scholars). In brief, Islamic scholars have traditionally disputed over the appropriate treatment of homosexuals owing to differences in the reading of the aforementioned texts. To this end, the severity and methods of punishment have significantly varied in Islamic history. Although there is an implicit condemnation of homosexuality in the Quran- the story of lut, similar to the biblical lot- there are no explicit precedents in Islamic law history of penalizing same sex relations. However, as Islamic scholars have pointed out, there is nothing in the passage of Lut, as contained in the Quran, to suggest that homosexual acts or sodomy ought to be criminalized other than they should simply be seen as sins (Schabas, 2002) .

Other Muslim scholars have referred to various traditions and hadiths combined with their reasoning to find answers to this question. With the numerous schools of jurisprudence and traditions, this reference has opened more debate more than it has led to a consensus. This is particularly the case since while many scholars and jurists underscored death as a penalty for sodomy in the medieval times, there was also at the same time other groups that urged more discretionary actions. In brief, the hadith seems to have diverged in different directions since the time of Prophet Mohammed and with them, differences on the question of same-sex relations (International Gay and Lesbian Human Rights Commission, 2015) .

Remedies

With the penal code of 2013, Iran by means intends to relax its laws to accommodate the LGBT community in the country. This reality, therefore, demands more action by international actors in making Iran make more concessions on this matter. Given the recent success by the international community in making Iran agree to international monitoring of its nuclear program, the next frontier is to make the nation relax its laws on LGBT people. This, of course, requires the joint action of international actors including the current allies of Iran. Support could also be directed to various human rights organizations that have some form of presence in the country.

Besides governmental and intergovernmental action, other complementary measures are crucial. The internet remains an important forum for many Iranians. Like other users of the internet, the LGBT community in Iran gets information and communicates through the internet. They attempt to make friends, organize and engage on social media forums. These platforms may be tapped into to encourage these minorities to organize and demand change. In light of the adversities that they undergo, useful information that may aid in overcoming these challenges would be worthwhile. More importantly, public awareness about LGBT communities could be raised over the internet. Iran’s population is constituted largely of young people who are increasingly having access to the internet. Informative content on the internet would help quash myths, superstitions, and bigotry directed at LGBT communities (Shima, 2015) . 

The power of the internet in this respect must not be overlooked, given its effective use and huge impacts before and during the Arab spring. These efforts will nonetheless need to contend with government surveillance and censorship of the internet. Already, there have been reports of internet entrapment whereby agents of the state pose as transgender interested in meeting up. Many people in Iran are however learning the use of anti-infiltration software that has enabled them to circumvent government surveillance and censors (Amnesty International, 2012) . 

Statistics also indicate that a good number of LGBT Iranians attempt to immigrate into European countries and America through Turkey. These persons require their applications to be processed and given reasonable opportunities to immigrate. Failure to offer refugee status to the persons discourages the agitator for greater freedom in Iran who eventually have to seek asylum from government persecution. Moreover, legal and theoretical questions on the treatment of LGBT persons require greater participation of the public. It cannot be that these questions are a preserve of a few authorities; fuller public discourses that expose the subjectivity of the so called expertise knowledge need to be encouraged (International Gay and Lesbian Human Rights Commission, 2015) .

Conclusion

The LGBT community has faced multiple forms of persecution in the Islamic Republic of Iran. Punishments such as flogging and execution as well as corrective surgeries point to the extent of these abuses. It has been argued in this paper that homosexuality in Iran is not a new phenomenon; there exists considerable evidence, dating back to the medieval times, to demonstrate its presence in the Persian Empire. The gradual adoption of prohibitions against the LGBT community has been provided. It is argued that the 1979 Iranian revolution marked a key watershed in the management of LGBT affairs in Iran: the codification of Islamic precepts into law, effectively rendering the LGBT community a target of the state.

It is the conclusion of this paper that with the adoption of the penal code in 2013, Iran demonstrates no intention of relaxing its laws to accommodate its LGBT community. This is despite being in flagrant violation of international treaties to which it is a signatory. It thus falls upon the international community as well as Iranians themselves to adopt tangible measures that will see the adoption of an accommodative legal regime that protects its LGBT minority.

References

Amnesty International. (2012). Death sentences and executions in 2011.

International Gay and Lesbian Human Rights Commission. (2015). Lesbian, Gay, Bisexual and Transgender Rights in Iran: Analysis from Religious, Social, Legal and Cultural Perspectives.

Nayyeri, M. (2012). New Islamic Penal Code of the Islamic Republic of Iran: An Overview. Iran Human Rights Documentation Centre .

Schabas, W. (2002). The Abolition of the Death Penalty in International Law.

Shima, H. (2015, October). LGBT Rights in Iran . Retrieved from Middle East Research and Information Project: http://www.merip.org/lgbt-rights-iran