Lebanese court rules homosexuality is not a crime, but persecution continues

Cairo: Handcuffed for three days in a van by the Syrian regime, Rania kept reminding herself that she was born this way.

The van was transferring her to al-Thawra in Syria in November 2010. She was being deported from Lebanon after spending more than 50 days in two prisons because she had made the physical shift to being a transgender woman, a punishable crime under Lebanon's vague penal code.

A gay-rights protester holds a banner in Beirut, Lebanon, in 2009.Credit: Reuters

When the Syrian uprising erupted in 2011, Rania again escaped across the border to Lebanon. But in August 2015 the make-up artist was stopped on her way to a friend's house in Beirut, harassed and shoved into a police van, again, along with six transgender women and a man after neighbours complained about their physical appearance. She was one of two Syrian transgender women arrested.

"I wish I would have hopped on a boat on the [Mediterranean] sea when the war started in Syria and I would have died or gone on to a better life," she told Fairfax Media on the phone from Beirut. "It's better than living here and dying a million deaths daily."

From left: Gay Syrian refugees Steve, Auz and Enana, with Egyptian Moe (second from right), in Berlin, Germany, are fleeing war and persecution in their home countries. Credit: Getty Images

Rania, 33, who provided her first name only for fear of repercussions for her family in Syria, was part of a landmark case in January in which a Lebanese judge ruled that homosexuality was not a crime but rather a personal choice.

The case brought forward by Helem, a leading group advocating for the rights of the Lesbian, Gay, Bisexual and Transgender (LGBT) communities in Lebanon, on behalf of the transgender women and men, disputed the legality of their arrest in Dora, a north-eastern suburb of Beirut, by the Internal Security Forces.

In his judgment, District Court Judge Rabih Maalouf provided a distinct interpretation of Article 534 of the country's penal code which "prohibits sexual intercourse against nature" by invoking Article 183, which enshrines personal freedoms as a right.

"It's the fourth ruling of its kind in recent years but it is extraordinary because it adopted a solid legal approach for future cases," said Helem director Genwa Samhat.

Eight Egyptian men were convicted for "inciting debauchery" in 2014 following their appearance in a video of an alleged same-sex wedding party.Credit: AP

Samar Habib, an Australian academic based in the US who has written extensively about LGBT rights in the Arab world, sees Maalouf's January 26 ruling as "critical to the ongoing agitations of activists in Lebanon to decriminalise homosexuality".

"The contest, however, is going to be over the legislative system's willingness to enshrine anti-discrimination laws explicitly. There is tremendous resistance against this, it is seen as a threat," she told Fairfax Media.

Rania, a transgender woman in Lebanon, was part of the landmark case.

The verdict has caused uproar in Lebanon since its announcement but has gained support from popular culture icons with massive followings in the Arab world, such as singer Carole Samaha:​

While homosexuality is punishable by death in Arab countries such as Saudi Arabia and the United Arab Emirates, in Lebanon it is not explicitly outlawed. However it is still considered a criminal act.

The ambiguous wording of the penal code has been used to prosecute those suspected of homosexuality, such as Rania, leaving interpretation of the law to individual judges. Even though transgender women do not identify as homosexual, the code has ensnared members of the transgender community, as well as gay people.

However in 2009, Judge Mounir Soliman of the Batroun Court ruled that consensual relations between members of the same sex were not unnatural. In 2014, Judge Naji El Dahdah of Jdeideh Court dismissed a case against a transgender woman for having relations with a man.

Last year, Human Rights Watch documented how one Syrian refugee was tortured at the hands of the Lebanese security apparatus through forced anal examinations.

Such cases – and the impunity of state officers involved in them – are symptomatic of a wider violent crackdown in the Arab world towards LGBT individuals in recent years.

Egyptian authorities arrested 26 men in a bath-house on charges of debauchery in 2014 after police received a tip they were holding gay orgies. They were later released.

The following year, Morocco arrested two gay men and sentenced them to four months in jail for standing too close to one another when posing for a photograph.

Tunisia, which has fared the best of all the Arab Spring countries in its democratic transition, prosecuted seven men last year for "sodomy", a crime according to its penal code.

Islamic State (IS) has also killed at least 36 men by shoving them off buildings for homosexuality in Iraq and Syria.

For Rania, societal resistance to her is a daily reality she faces in relatively tolerant parts of Beirut. She recounted to Fairfax Media several incidents where she was sexually harassed, raped and fondled because of her appearance.

"Every step I take is filled with fear," she added.

She recounted how her father had tied her upside down to a tree when they lived in Aleppo, but her brother gave her cigarettes so she would develop a deeper voice.

Solitary confinement for 45 days in a Damascus prison in November 2010 was most traumatic of all: "It was an unbelievable psychic siege for me, like Guantanamo, as if I was a criminal."

Even as a refugee registered with the UN, Rania has lived a precarious existence in Lebanon since April 2011, when she escaped Syria after the uprising turned bloody.

"Our lives are more endangered than other citizens' because of how we look and because we are refugees. Most people just don't understand us."

According to a global study by the Pew Research Centre, more than 80 per cent of Lebanese view homosexuality unfavourably, hardened attitudes that can be attributed to conservative religious institutions, Christian and Muslim alike.

January's verdict has been condemned by various religious bodies, such as the Association of Muslim Scholars of Lebanon, describing it as "a shock to Lebanese society".

"In the Arab world, even when the law is secular, it is still a reflection of the collective religious beliefs and values of a people. For this reason, I do genuinely believe that to engage the religious establishment in all the countries of the Arab world is crucial for affecting lasting and sustainable social change," Habib said.

Youmna Makhlouf, a lawyer with rights organisation Legal Agenda who represented two of the accused defendants in the January case, maintains that the public debate is a positive for raising awareness about LGBT rights.

"I think it will change attitudes in Lebanese society as it has become more open. You don't have the right to criminalise anymore because that argument is now invalid legally, scientifically and societally," she said.

"You can hear it everywhere you go" Samhat said. "There is now a space to argue about sexual rights, whether it is confused or anti (gay rights) or pro, but at least now there's a space to express these opinions."

She affirmed that her organisation would continue lobbying for the abolition of Article 534 so that all sexual minorities are protected legally.

Makhlouf commended the judge for his respect of the defendants' rights and not delving into intimate details that were recorded in their case files. She said they should not have been arrested in the first place.

"We see this in a lot of cases where people are prosecuted without any evidence and sometimes forced to give statements under duress or talk without a lawyer present. Those who are transgender are expressly targeted."

But even as activists cautiously celebrate the ruling, Rania is wary of the practices of stopping and frisking ingrained in Lebanese security institutions.

"It is ink on paper at this point. No one is enforcing the laws on the books," she said.

Rania is adamant that she must seek asylum outside Lebanon as the situation in Syria deteriorates and daily harassment in Lebanon continues unabated.

"We escaped war, death and terrorism but maybe we should have stayed, because no one accepts us, with a million curses daily. We are treated worse than animals. Where should we live? In the desert or thrown in the middle of the sea?"