A Legal Step in the Right Direction
On January 28, 2014, Naji al-Dahdah, a magistrate in Jdeideh el-Metn, Lebanon, issued a ruling acquitting a transexual individual accused of engaging in sexual relations with men. The ruling carries great significance, not just for the legal status of transexuals, but also because of its implications for interpreting Article 534 of the Lebanese Penal Code.
This particular article which references “sexual intercourse contrary to nature”, is often used to punish individuals for engaging in same-sex relations. In recent years, it is well known that this article has presented various problems in the judicial sphere revolving around the meaning of its terminology. Whereas some reject the use of its language as a basis for criminalizing same-sex relations, others have interpreted the article as criminalizing these very types of relations.[1]
The facts of the case are as follows: a person born with ambiguous genitalia -whose sexual organs do not allow for their categorization as either male or female- was registered in personal status records as a male. An individual must be categorized upon birth as either male or female, in light of the absence of a “third box” to check on personal status records. However, the individual in question always felt a strong tendency -invoked by female hormones in his body- to become a woman.
As a result, in the 1990s, he underwent a surgical operation to remove his male sexual organ and implant an artificial uterus. After engaging in sexual relations with men, the person was apprehended and charged before the criminal court in Jdeideh el-Metn. This is the first case known to this author in which a transexual has appeared before a criminal court. There are precedents in civil courts, however, where transexuals have presented numerous requests for corrections to be made to their personal status records.[2]
Accordingly, the judge was presented with a very basic question concerning the concept of “sexual intercourse contrary to nature”: is it intercourse that occurs between two people when belonging to the same sex? If so, how are sex and sexual identity defined in this context? Is such an identity determined by official registration forms, or is it a biological or psychological identity, or perhaps a social one? And what is the extent of an individual’s freedom to determine his identity, or to engage in sexual relations?
Initially, the judge refers to the defendant in the same way as the birth records do - as a male. The judge traces the defendant’s life from birth until the date of the trial. However, upon taking into consideration the defendant's “social, psychological, and physical/external development”, the judge revises his original categorization and commences to refer to the defendant using both gender pronouns (“him/her”).
In doing so, the judge highlights a twofold sexual identity that is deep and complex, and which does not fit squarely within either the male or female type. Thus, for the first time in the legal sphere, a third identity has emerged: one that encompasses both male and female genders and sanctions the individual’s freedom to determine their own gender, and which exists outside of socially defined categories.
The ruling, of course, has important repercussions for Article 534 of the Penal Code. By not invoking gender as a factor in applying the article, and instead, relying upon “external appearances”, social behaviors, and psychological sensibilities, the verdict offers a reassessment of the criminalization of same-sex relations. Absent the use of a person’s gender identity in applying the article, defining “sexual intercourse contrary to nature” as including sexual relations between individuals belonging to the same gender is impossible.
This reading of the ruling is confirmed by its conclusion, which nullifies investigations into violations of Article 534 of the Penal Code in the case due to an absence of criminal factors, and on the basis of two principles.
The first of these is the principle of non-expansion in interpretations of the Penal Code. In this context, the ruling points out that “lawmakers did not specify a clear concept of what constitutes sexual intercourse (mujama’a) contrary to nature”. In the absence of this definition, the judge retains the discretionary power to interpret the article more narrowly - given that a broader interpretation could lead to the restriction of personal freedoms.
Following this logic, the ruling leans towards a limited definition of the concept “contrary to nature”, by affirming that “individuals who are affected by gender dysphoria…, who deviate from the norm, or depart from custom, are nevertheless the consequence of natural childbirth”. The ruling thus points out that differing from the norm does not translate into deviancy or abnormality, and that “nature” cannot be defined merely through the behavior of the majority.
The ruling therefore stands out for its view of human nature, whereby it echoes a ruling issued on December 2, 2009 by a magistrate in Batroun. The 2009 ruling explicitly stated “that a person is a part of nature, and one of its constituent elements. It is therefore not possible to say that any human practice or behavior is contrary to nature, even if it is criminal, because those practices and behaviors are themselves consequences of nature”.
It is worth pointing out that the concepts of criminal law from which the ruling arrives are independent of religious concepts. Rather, they represent the judge’s application of independent secular standards that seek to liberate social behavior (and sexual behavior in particular) from the constraining of sexual relations to the sole purpose of reproduction.
The substance of the second principle on which the ruling is based is reflected in the following. The Lebanese Constitution and human rights law enshrine the obligation to guarantee equality among all individuals in society, and to protect their personal freedoms in particular, when those freedoms do not cause harm to others. Of course, these principles do not only apply to transexuals, but extend to other LGBT individuals as well.
The European Court of Human Rights, for example, has used the same principles to condemn states that criminalize same-sex relations.[3] In light of that, the Lebanese ruling also cited “the resolution issued by the UN Human Rights Council on June 17, 2011 which laid out clearly, for the first time, measures to counter rights violations and discrimination against individuals due to sexual orientation or gender identity, and which were non-binding for Lebanon”.
Finally, it should be emphasized that the dilemma posed by Article 534 of the Penal Code is not confined to its application to LGBT persons. Any discussion of the criminalization of “sexual intercourse contrary to nature” also encompasses the freedom of individuals -regardless of their sexual orientation- to form their own private personal relationships outside the framework of marriage if they see fit, and to do so free from all forms of discrimination. As it is, Lebanese law does not punish cohabitation outside of marriage in any direct way. However, in terms of inheritance rights, there is discrimination between children born to married parents and those born outside of wedlock - with the latter indirectly penalized.
Annulling Article 534 of the Penal Code is an essential step towards combating unjust violations of individual privacy. The Jdeideh el-Metn ruling discussed in this article, as well as the Batroun one mentioned above, represent a step in the right direction.
References:
[1] See: Wahid Ferchichi and Nizar Saghieh’s, “Homosexual Relations in the Penal Code: A Study on Laws of Arab States with Analyses of Lebanon and Tunisia”.
[2] See: Youmna Makhlouf’s, “Judges, Transsexuals, and Correcting Birth Records”, The Legal Agenda, dated September 26, 2011.
[3] See: Diane Roman’s, “Right to Respect for Private Life, for the Home, and for Correspondence”, Fasc. 640, dated 2007.
First published in Arabic by the Legal Agenda on March 4th, 2014.
First published in English by the Legal Agenda on March 10th, 2014.