Gay rights in the West have been publicly debated since at least the late 1970s. In much of the rest of the world, however, same-sex relations, and specifically male-to-male intercourse, remain taboo topics and even criminal offenses. The most recent International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) report, released in 2019, states that today seventy countries continue to imprison those found participating in same-sex relations, while others require compulsory medical treatment and conversion therapy.
Same-Sex Narratives and the Sharia
In the Arab-Muslim world, homosexuality is typically perceived as forbidden, or haram. Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) rights are commonly seen as Western notions. In extreme cases, homosexual behavior is subject to corporal punishment or even the death penalty. These harsh punishments are based on Islamic legal theory and the writings of classical seventh century Islamic jurists in relation to sexual intercourse. The latter in fact developed a highly complex and sophisticated jurisprudence (fiqh) that interpreted the Qur’an and Sunna based on various hermeneutical tools. Hence, under Islamic law, zina, or the act of extramarital sexual intercourse between a man and a woman, constitutes a major offense. It is the first of the hadd crimes, which are the six most serious crimes specified in the Qur’an, considered to be crimes against God. The punishment prescribed in the Qur’an for zina is death, subject to fulfilment of the strict legal requirements of proof as stated in the Qur’an.
Today, the criminalization of same-sex relations is increasingly questioned. The Sharia aspect of the argument is most heavily debated. Yet personal reasoning (ijtihad) in the context of the Sharia is generally limited and controversial for two reasons: it can only be done by the jurists who are adequately qualified and some Muslim scholars have argued that the process of ijtihad has stopped save for “truly novel cases.” That said, the Sharia law argument in relation to liwat appears to be one of these cases where ijtihad is most contentious. Some authors reiterate the views of the Hanafi school according to which sodomy should not be equated to zina as it does not lead to offspring; others highlight the astonishing acceptance of sexual varieties and gender diversity in the time of the Prophet, extensively documented by the presence of effeminates, or mukhannathūn, within the various circles of the Prophet; while others point to the need to interpret the Lūt parable in its context, condemning immorality and lust rather than sodomy.
Additional punishments for homosexual behavior were transported to the Muslim world through colonial criminal codes. In pre-colonial Muslim societies, a certain degree of tolerance, openness, and, arguably, acceptance of same-sex affection, especially what was often termed “passionate love” between males, existed, as evidenced in particular in love poetry. Colonial laws intervened to suppress what they saw as uncivilized practices and minimize local practices of same-sex intercourse. The best-known example is arguably the so-called “377 offence” (Common Section 377 in the penal codes of the Commonwealth), which is the result of British colonial presence in the Middle East and South Asia. Common Section 377 of the Indian, Bangladeshi, Pakistani, and Nepalese criminal codes punish the crime of carnal intercourse against the order of nature by life imprisonment.
Gay Friendly Mosques vs. ‘Islamization’
This modern Sharia interpretation is naturally a matter of a heated doctrinal debate and remains a non-mainstream approach to LGBTI rights in Islam. However, it has been embraced by LGBTI and human rights activists. Inclusive and gay friendly mosques are mushrooming, and some Imams have come out as gay or otherwise celebrate same-sex unions in countries such as France, Canada, South Africa, Australia, and the United States. Likewise, many Western countries now recognize LGBT-related asylum claims and asylum agencies affirm that anti-gay violence within a country constitutes persecution.
Even the oil-rich Arab Gulf countries seem to be gradually realizing that neither economic development nor meaningful engagement with other states can happen without diversity. While the acceptance of registration of the first gay Kuwaiti association is still up in the air, Gulf countries are increasingly under pressure from the international community to abide by current human rights standards. Clearly Qatar, which is set to host the 2022 FIFA World Cup and has adhered to two major human rights treaties, cannot remain an outsider to these developments—especially given that FIFA has now a detailed human rights policy and is particularly supportive of inclusive football associations such as the International Gay and Lesbian Football Association. Media outlets have reported that Qatari governmental officials have reassured the gay community that “LGBTI fans will be welcome at the World Cup.”
It may appear that Muslim countries face a dilemma as to whether they should recognize LGBT rights or follow Sharia law. This is a false dilemma, as the Qur’an does not specifically prescribe the punishment of sodomy; the role of Muslim scholars and academics in clarifying possible interpretations of the Sharia on this point is crucial. Yet the main issue seems to be intolerant, homophobic attitudes rather than Sharia.
First, those Muslim States that punish same-sex relations with imprisonment should reform their criminal codes and abide by human rights standards, including the prohibition discrimination on the basis of sexual orientation. Second, Muslim States which are in the process of reform and have invested in education and digital transformation, as in the Gulf, should relax regulation on public morality and amend their media laws in order to enhance freedom of speech. Public debate on Sharia-related issues should be free from restraints on culturally sensitive issues such as LGBT rights. Change can only come about through a slow process.
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Eleni Polymenopoulou is Assistant Professor at Hamad Bin Khalifa University, College of Law, in Qatar, where she teaches Advanced Human Rights Law, International Law and Media Law. She is also Visiting Research Fellow at University College London (UCL) – Qatar on a project related to arts, cultural heritage, and religious extremism under Islamic law and international law.