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LGBT rights in the State of Palestine

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LGBT rights in Palestine
Map of the twoPalestinian territories,highlighted in green: theWest Bank(right) and theGaza Strip(left)
StatusMixed legality:
  • West Bank – legal since1951,equal age of consent
  • Gaza Strip – no consensus on applicability of British 1936Sexual offencesprovisions to homosexual conduct
Family rights
Recognition of relationshipsNo recognition of same-sex couples
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Homosexuality in the Palestinian territories is considered a taboo subject; lesbian, gay, bisexual, and transgender (LGBT) people experience persecution and violence. There is a significant legal divide between theWest Bankand theGaza Strip,with the former having more progressive laws and the latter having more conservative laws. Shortly after theJordanian annexation of the West Bankin 1950, same-sex acts were decriminalized across the territory with the adoption of theJordanian Penal Code of 1951.In theEgyptian-occupied Gaza Stripand underHamas' rule, however, no such initiative was implemented.

Public opinions

Polls of public sentiment towards LGBT people in the Palestinian territories find it isoverwhelmingly negative.A Global Acceptance Index (a measure of the relative level of social acceptance of LGBTI people and rights) report ranked Palestine at 130, noting that very little change in acceptance occurred between 2010 and 2020.[1]

Legal status and criminal law

On 18 September 1936, thecriminal codeofMandatory Palestine,British Mandate Criminal Code, which drew fromOttoman lawor English law,[2]was enacted. Section 152(1)(b)(c) of the code states that any person who "commits an act of sodomy with any person against his will by the use of force or threats" or "commits an act of sodomy with a child under the age of sixteen years" is liable for imprisonment up to 14 years, while Section 152(2)(b) states that anyone who has "carnal knowledge" of anyone acting "against the law of nature" is liable for a prison term up to 10 years.[3]Palestinian academic Sa'ed Atshan argued that this criminal code was an example of British export ofhomophobiato theGlobal South.[4]The present applicability of this law is disputed. TheHuman Dignity Truststates that the criminal code is still "in operation" in Gaza albeit with scarce evidence of its enforcement,[5]andHuman Rights Watchstates that the criminal code is still "in force" in Gaza.[6]Amnesty Internationaldoes not report same-sex sexual activity as being illegal in any Palestinian territory but emphasizes that Palestinian authorities do not stop, prevent or investigate homophobic and transphobic threats and attacks.[7]The editor-in-chief of thePalestinian Yearbook of International Law,Anis. F. Kassim argued that the criminal code could be "interpreted as allowing homosexuality."[8][9]

The decriminalization of homosexuality in Palestine is a patchwork. On the one hand, the British Mandate Criminal Code was in force in Jordan until 1951, with the Jordanian Penal Code having "no prohibition on sexual acts between persons of the same sex," which applied to theWest Bank,[6]while Israel stopped using the code in 1977.[10]On the other, thePalestinian Authorityhas not legislated either for or against homosexuality. Legalistically, the confused legal legacy of foreign occupation –Ottoman,British,Jordanian,Egyptianand Israeli – continues to determine the erratic application or non-application of the criminal law to same-sex activity and gender variance in each of the territories.[11]A correction issued by theAssociated Pressin August 2015 stated that homosexuality is not banned by law in the Gaza Strip or West Bank, but is "largely taboo," and added "there are no laws specifically banning homosexual acts."[12]

In 2018,Human Rights Watchnoted that laws in the West Bank and the Gaza Strip include a combination of unified laws passed by thePalestinian Legislative Counciland ratified by thePresident of Palestine,and stated that laws from the former British Mandate, Egypt, and Jordan still apply when unified laws have not been issued. However, HRW added that Hamas has issued separate decrees and has not applied presidential decrees by thePresident of Palestine.[13]Also, the organization reported that articles 258 and 263 of the draft penal code, in 2003, for Palestine, contained "provisions that criminalize adult consensual same sex conduct". However, it is not known whether this code, which prohibited sexual intercourse with women who are over 18 in an "illicit manner" with imprisonment, a prison term of up to five years if they are related to the said woman or up to ten years for those who engage inrape,and up to five years in prison for a male who "commits the act of sodomy with another male", was implemented.[14][13]There have also been attempts by theGazan legislative body,followingHamas's takeover of Gaza,to "amend or replace the British Mandatory Penal Code" with a proposed change in 2013, including "flogging for adultery" but it did not pass the legislature.[15]

Civil rights

In theState of Palestine,there is no specific, stand-alonecivil rightslegislation that protectsLGBT peoplefrom discrimination or harassment.

Palestinian National Authority

In August 2019, the Palestinian Authority announced that LGBT groups were forbidden to meet in the West Bank on the grounds that they are "harmful to the higher values and ideals of Palestinian society". This was in response to a planned conference inNablusbyAl-Qaws,a Palestinian LGBT group.[16][17][18]Following backlash, the ban was later withdrawn.[19]

Gaza Strip

Scholar Timea Spitka stated that in Gaza,coming outis a "death sentence" because police don't act against queerphobic violence,domestic violenceisn't criminalized, and civil society organizations, which protect women and children, are reported to be "vulnerable to attack." Spika added, in a related article, that this vulnerability has "been exploited by Israel," noting a connection between theIsraeli occupation,lack of security and protection for women and non-heterosexual people, and lack ofrule of law.[20][21]In 2019,Haaretzinterviewed four gay men and one gay woman living in Gaza, who recounted their experiences: one man recounted his rough treatment byHamasmembers, while others said they feared being arrested, outed, thenforcedinto heterosexual marriage by their families. All four said that social media was a "game changer" in meeting other LGBTQ individuals, but some fearedcatfishingby undercover Hamas or Israeli intelligence agents.[22]

Some interpretations of Palestinian law say that it does not outlaw consensual gay sex between adults. Anis. F. Kassim (editor-in-chief of the Palestinian Yearbook of International Law) said that Palestinian law (even in Gaza) could be interpreted as allowing non-commercial sex between consenting adult men.[9]

LGBT people are excluded from military service in the Gaza Strip.[23]

Gay men who flirt with Israeli soldiers on dating aps, worry about beingcatfishedby Hamas's security services.[24][9]

Israel

It has been reported that the hostilities homosexual Palestinians face has led to many seeking refuge in other countries, such asIsrael.[25]However, the complex legal status of the Palestinian territories results in almost no assistance from most countries. Some have reported that while hundreds of homosexual Palestinians have fled toIsrael,they have been subject tohouse arrest,ordeportation,by Israeli authorities.[26]However, in June 2022, Israel began issuing work permits for gay Palestinian refugees, who had been granted asylum, and those "fleeing domestic violence."[27]Prior to the rule change, the Israeli government resisted changing the terms for issuing permits, fearing it would "encourage more Palestinians to flee to Israel and seek asylum."[28]The Israeli LGBT organizationThe Agudastated, in 2013, that around 2,000 Palestinian homosexuals live inTel Aviv"at any one time." There have also been reports thatPalestinian Authoritypolice kept files on gay Palestinians and thatIsraeli intelligenceblackmailed gay Palestinians into becominginformants.[29][30]

In mid-2022, the Israeli government told the IsraeliHigh Courtthat LGBT Palestinians from the West Bank who were "fleeing persecution" could work in Israel but that their presence was only temporary "in order to find a permanent solution in the [West Bank] or in another country."[27]A month after the murder, theTimes of Israelnoted that gay Palestinians who leave the West Bank, with public opinion polls indicating low tolerance for homosexuality, and arrive in Israel are faced with "an existence filled with dizzying uncertainties and life-threatening hazards." The article went on to say that such Palestinians have various escape routes to Israel, but that making them eligible for permanent residency includes "working with Israeli security forces" although those forces have been accused of blackmailing Palestinians into becoming informants for Israeli intelligence services; only "select few who have passed on invaluable knowledge" are granted this kind of permit, which requires the sign-off of the prime minister.[31]A young man inNablus,who was executed by theLions' Den militant groupfor giving information to Israeli security forces, was allegedly blackmailed byShin Betusing a video of him having sex with a male partner (see below).[32][33][34]Persecution of - and discrimination against - suspected gay men by Al Qassam and the police in Gaza is also largely attributable to them being suspected informants.[9]

Extrajudicial killings

See also:Capital punishment for homosexuality,Extrajudicial killings in the West Bank,andExtrajudicial killings in the Gaza Strip

They're have been relatively few murders of LGBT (or allegedly LGBT) people in Palestine, and the victim's sexuality was the primary motive in only one reported case.

One vigilante murder

In October 2022, Palestinian police arrested a suspect who beheaded a 25-year-old male Palestinian,Ahmad Abu Murkhiyeh,who was seekingasylumin Israel "because he was gay." At the time it was reported that 90 Palestinians who identified with the LGBT community lived "as asylum seekers in Israel".[35][36]

One man killed for espionage byLions' Den

In April 2023 it was reported that Zuhair Relit (also known as Zoheir Khalil Ghalith), a Palestinian living inNablus,was killed by theLions' Denmilitant group for collaborating with theIDF.Relit alleged he was blackmailed into becoming an informant for the Israeli military, with his confessional video on social media claiming thatShin Bethad an "illicit video" showing him doing something sexual with a male partner. He was later executed by the Lions' Den group.[32][33][34][37]

One controversialAl-Qassam Brigadescomadner

This section is an excerpt fromExtrajudicial killings in the Gaza Strip § Al Qassam commander killed in 2016.[edit]

In February 2016, Al Qassam claimed they had executed ofMahmoud Eshtewi(Arabic:محمود رشدي اشتيوي,romanized:Maħmoud Rushdi Eshtewi,[38][39]sometimes spelled "Mahmoud Ishtiwi" ).[40]one of the group’s leading commanders, for very ambiguous reasons. But many, includingHuman Rights Watch,questioned the legitimacy of the judicial procedure that Al Qassam claimed had taken place, and accused them of carrying out anextrajudicial killing.

Most reliable sources at the time described the charges as unnamed or undefined.[41][42][38][43]The stated reason was “for behavioral and moral violations to which he confessed” (Arabic:تجاوزاته السلوكية والأخلاقية التي أقر بها)[38][39][43]Whatever it may refer to, the confession was probably obtained by torture.[43][42]Before his death, his family had been told that the death penalty charge - treason (giving information to Israel that causes the deaths of Palestinians) - had been dropped.[43]There is some suspicion that Eshtewi died in custody and was shot after death, from reports of people who saw his body before burial and thought the bullet wounds looked suspicious.[38][43]TheNew York Timesand other media from the USA interpreted the vague charges as a reference to a "homosexual relationship".[44][45]

Eshtewi was survived by his two widows and his three children.[44]

Palestinian activism

Logo ofAl Qaws,the leading organization for Palestinian LGBTQ rights. The group was shortly banned in 2019, with the ban being reversed after backlash.
See also:Pinkwashing (LGBT) § Israel

In the early 2000s, two established groups formed to provide support tolesbian,gay, bisexual,trans,queer,andquestioning(LGBTQ) Palestinian people living within the borders of Israel, the Gaza Strip, and the West Bank.Al Qaws( "The bow" in Arabic, referencing a rainbow), the first official Palestinian LGBTQ organization, was founded in 2001 as a community project of theJerusalem Open House for Pride and Tolerance[46]to specifically address the needs of LGBTQ Palestinian people living inJerusalem.[47]

In 2015, a Palestinian artist namedKhaled Jarrarpainted arainbow flagon a section of aWest Bank wall,and a group of Palestinians painted over it. Jarrar said that he painted the rainbow flag to remind people that althoughsame-sex marriagewas legalized inthe United States,Palestinians still live in occupation, and criticized the paint-over, stating that it "reflects the absence of tolerance, and freedoms in the Palestinian society".[48]

Aswat

In 2002, a second group formed to specifically address the needs of Palestinian lesbian women, namedAswat( "Voices" in Arabic), was founded and based in Israel as a project of the PalestinianfeministNGOKayan,at theHaifa Feminist Center.Aswat started as an anonymousemail-listserving to provide support to Palestinian gay women, and developed into an established working group, translating and developing original texts related to gender identity and sexuality into Arabic.[47][49]Aswat's efforts brought results, while also facing multi-faceted challenges. In 2003, co-founder Rauda Morcos was outed by the Israeli tabloidYedioth Ahronothafter agreeing to an interview, despite asking her sexual orientation not be included in the article, which led to significant personal backlash.[50]

In 2007, Aswat held its first public conference inHaifa,Israel: 350 people attended the event, which marked the first five years of the organization's existence and the publication of a new book in Arabic about lesbian and gay identity. The conference was reported to be problem-free, although it met opposition by theIslamic Movement in Israel(a grouping of Arab Muslims), which publicly called for the meeting to be cancelled, and urged its community "to stand against the campaign to market sexual deviance among our daughters and our women" resulting in some 30 people protesting outside the venue; the same group issued afatwaagainst Rauda Morcos because, Morcos said, "according to them I was ‘the snake’s head‘".[51][50][52]

Nisreen Mazzawi, co-founder of Aswat, stated that LGBTQ Palestinians, being stateless, face "oppression, whether conscious or unconscious, also within Israeli organizations" because "LGBTQ Israelis identify with the state even before their queer identity, and they will not stand with LGBTQ Palestinians simply because both are queer. They will fight against Jewish homophobes, but... (LGBTQ) Palestinians will remain on their own.”.[52]In 2004, Aswat had 14 members.[53]In 2007, the group, which includes women from the West Bank and Gaza, had 30 active members and about 50 women participating in the email list.[54]

Islamist opposition

Islamist groups in Palestine comment on LGBT issues far less often thanfar-right religious politicians in Israel.But the very small group thePalestinian Mujahideen Movement(the political wing of theMujahideen Brigades) and the Rightly-Guided Caliphs Assembly for Da'wah have been critical ofUNWRApromoting what the groups see as un-Islamic values, including LGBT issues.[55][56]

Israeli–Palestinian conflict

Protesters with signQueers Against Israeli ApartheidinEdmonton(2011)

In 2010, the organization Palestinian Queers forBoycott, Divestment, and Sanctions(PQBDS) was formed, aimed at challenging Israeli representation of gay life in Palestine andpinkwashing.They also run a website called Pinkwatching Israel.[47]

Palestinian queer organizations like Al Qaws describe themselves as "queer-feminist" andanti-colonialin regards to the Israeli-occupied territories,[57]and caution against rendering all of the progressive forces inside Palestine invisible, including erasing the queer Palestinian movement's achievements, describing it as a form of violence.[58]In relation to a ban onconversion therapyin Israel, activists such as Maisan Hamdan criticized the conservativeIslamic Movement,which is active in Israel and part ofKnesset,who voted against the ban. Hamdan states that the sole effort of the movement is Palestine's liberation, without inclusion of LGBTQ rights, and stated that these two efforts (liberating Palestine and liberating queer people) should proceed together.[52]

During the2023 Israel–Hamas war,some Palestinians, who considered themselves part of the LGBT community, shared information in anonymously geotagged posts onQueering the Map,a community-based onlinecollaborativeandcounter-mappingplatform. It was said byTimethat this provided a "rare glimpse" into perspectives of queer Palestinians, with many messages expressing solidarity with thePalestinian liberationcause.[59]Others stated that Palestinians were sharing their "last words" on the platform.[60]

Summary table

Same-sex sexual activity legal West Bank:
YesLegal since 1951 for males; always been legal for females
Gaza:
No consensusMales (and females): No consensus on legal applicability of British 1936Sexual offencesprovisions to homosexual conduct
Equal age of consent West Bank:Yes(18 years)
Gaza:NoFor males /YesFor females
Anti-discrimination laws in employment only No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Same-sex marriages No
Recognition of same-sex couples No
Step-child adoption by same-sex couples No
Joint adoption by same-sex couples No
Gays and lesbians allowed to serve openly in the military No
Right to change legal gender No
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMallowed to donate blood No

See also

References

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  55. ^"حركة المجاهدين الفلسطينية - مجمع الخلفاء الراشدين الدعوي يدين ويستنكر توزيع وكالة غوث وتشغيل اللاجئين الفلسطينيين…".
  56. ^"مجمع الخلفاء الراشدين الدعوي يدين ويستنكر توزيع وكالة غوث وتشغيل اللاجئين الفلسطينيين" الأونروا "نشرات مخالفة لشريعتنا الإسلامية The Rashidun Caliphs Assembly for Da'wah condemns and denounces the distribution of leaflets by the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) that violate our Islamic Sharia".حركة المجاهدين الفلسطينية (Palestinian Mujahideen Movement). 16 September 2023. Archived fromthe originalon 5 June 2024.Retrieved5 June2024.The Dawa Academy believes that these publications clearly and blatantly violate the feelings of Muslims, call for the spread of vice, contradict the traditions of our Palestinian people, and violate the teachings of our tolerant Hanafi law. The Council also believes that the so-called gay rights are completely rejected and have no place in our conservative Palestinian society.Quote inArabic:
    ويرى المجمع الدعوي أنّ هذه النشرات تنتهك بشكل واضح وفاضح مشاعر المسلمين، وتدعو لنشر للرذيلة، وتتناقض مع تقاليد شعبنا الفلسطيني، وتخالف تعاليم شريعتنا الحنفية السمحة، كما ويرى المجمع أنَّ ما يسمى بحقوق المثليين مرفوضة جملةً وتفصيلًا، وليس لها مكان في مجتمعنا الفلسطيني المحافظ.
  57. ^"About Us".Al Qaws.Archivedfrom the original on 8 October 2023.Retrieved2 November2023.
  58. ^Maikey, Haneen; Aked, Hilary (3 March 2019)."Eurovision has turned into a 'pinkwashing' opportunity for Israel – the LGBT+ community should boycott it".The Independent.Archivedfrom the original on 23 May 2023.Retrieved2 November2023.
  59. ^"In Gaza, 'Queering the Map' Reveals Heartbreaking Notes of LGBT Love and Loss".Time.20 October 2023.Archivedfrom the original on 31 October 2023.Retrieved1 November2023.
  60. ^Denny (18 October 2023)."LGBTQ Palestinians in Gaza are sharing their last words on an online mapping platform".Reckon.Archivedfrom the original on 23 October 2023.Retrieved1 November2023.

Further reading

External links

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