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 the West Bank and the Gaza Strip, with the former having more progressive laws and the latter having more conservative laws. Shortly after the Jordanian annexation of the West Bank in 1950, same-sex acts were decriminalized across the territory with the adoption of the Jordanian Penal Code of 1951. In the Egyptian-occupied Gaza Strip and under Hamas' rule, however, no such initiative was implemented.
Legal status and criminal law
On September 18, 1936, the criminal code of Mandatory Palestine, British Mandate Criminal Code, which drew from Ottoman law or English law,[1] 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.[2] Palestinian academic Sa'ed Atshan argued that this criminal code was an example of British export of homophobia to the Global South.[3] The present applicability of this law is disputed. The Human Dignity Trust states that the criminal code is still "in operation" in Gaza albeit with scarce evidence of its enforcement,[4] and Human Rights Watch states that the criminal code is still "in force" in Gaza.[5]Amnesty International does 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.[6] The editor-in-chief of the Palestinian Yearbook of International Law, Anis. F. Kassim argued that the criminal code could be "interpreted as allowing homosexuality."[7]
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 the West Bank,[5] while Israel stopped using the code in 1977.[8] On the other, the Palestinian Authority has not legislated either for or against homosexuality. Legalistically, the confused legal legacy of foreign occupation – Ottoman, British, Jordanian, Egyptian and 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.[9] A correction issued by the Associated Press in 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."[10]
In 2018, Human Rights Watch noted that laws in the West Bank and the Gaza Strip include a combination of unified laws passed by the Palestinian Legislative Council and ratified by the President 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 the President of Palestine.[11] 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 in rape, and up to five years in prison for a male who "commits the act of sodomy with another male", was implemented.[12][11] There have also been attempts by the Gazan legislative body, following Hamas'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.[13]
Civil rights and government action
In the State of Palestine, there is no specific, stand-alone civil rights legislation that protects LGBT people from discrimination or harassment. It has been reported that the hostilities homosexual Palestinians face has led to many seeking refuge in other countries, such as Israel.[14] 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 to Israel, they have been subject to house arrest, or deportation, by Israeli authorities.[15] However, in June 2022, Israel began issuing work permits for gay Palestinian refugees, who had been granted asylum, and those "fleeing domestic violence."[16] 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."[17] The Israeli LGBT organization The Aguda stated, in 2013, that around 2,000 Palestinian homosexuals live in Tel Aviv "at any one time." There have also been reports that Palestinian Authority police kept files on gay Palestinians and that Israeli intelligence blackmailed gay Palestinians into becoming informants.[18][19]
In February 2016, it was reported that one of the leading commanders of the armed wing of Palestinian militant group Hamas, Mahmoud Ishtiwi, was executed under the charges that he engaged in homosexual activity and theft.[20][21] Scholar Timea Spitka stated that in Gaza, coming out is a "death sentence" because police don't act against queerphobic violence, domestic violence isn't pursued, 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 the Israeli occupation, lack of security and protection for women and non-heterosexual people, and lack of rule of law.[22][23] In 2019, Haaretz interviewed four gay men and one gay woman living in Gaza, who recounted their experiences: one man recounted his rough treatment by Hamas members, while others said they feared being arrested, outed, then forced into heterosexual marriage by their families. All four said that social media was a "game changer" in meeting other LGBTQ individuals, but some feared catfishing by undercover Hamas or Israeli intelligence agents.[24]
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 in Nablus by Al-Qaws, a Palestinian LGBT group.[25][26][27] Following backlash, the ban was later withdrawn.[28]
In October 2022, Palestinian police arrested a suspect who beheaded a 25-year-old male Palestinian, Ahmad Abu Murkhiyeh, who was seeking asylum in 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."[29][30]
Over three months before, the Israeli government told the Israeli High Court that 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."[16] A month after the murder, the Times of Israel noted 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]
Activism
Logo of Al Qaws, the leading organization for Palestinian LGBTQ rights. The group was shortly banned in 2019, with the ban being reversed after backlash.
Polls of public sentiment towards LGBT people in the Palestinian territories find it is overwhelmingly 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.[32] In the early 2000s, two established groups formed to provide support to lesbian, gay, bisexual, trans, queer, and questioning (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 the Jerusalem Open House for Pride and Tolerance[33] to specifically address the needs of LGBTQ Palestinian people living in Jerusalem.[34]
In 2002, a second group formed to specifically address the needs of Palestinian lesbian women, named Aswat ("Voices" in Arabic), was founded and based in Israel as a project of the Palestinian feministNGO Kayan, at the Haifa Feminist Center. Aswat started as an anonymous email-list serving 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.[34][35] Aswat's efforts brought results, while also facing multi-faceted challenges. In 2003, co-founder Rauda Morcos was outed by the Israeli tabloid Yedioth Ahronoth after agreeing to an interview, despite asking her sexual orientation not be included in the article, which led to significant personal backlash.[36]
In 2007, Aswat held its first public conference in Haifa, 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 the Islamic 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 a fatwa against Rauda Morcos because, Morcos said, "according to them I was ‘the snake’s head‘".[37][36][38]
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.”.[38] In 2004, Aswat had 14 members.[39] 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.[40]
In 2010, the organization Palestinian Queers for Boycott, Divestment, and Sanctions (PQBDS) was formed, aimed at challenging Israeli representation of gay life in Palestine and pinkwashing. They also run a website called Pinkwatching Israel.[34]
Protesters with sign "Queers Against Israeli Apartheid" in Edmonton (2011)
In 2015, a Palestinian artist named Khaled Jarrar painted a rainbow flag on a section of a West Bank wall, and a group of Palestinians painted over it. Jarrar said that he painted the rainbow flag to remind people that although same-sex marriage was legalized in the 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".[41]
Palestinian queer organizations like Al Qaws describe themselves as "queer-feminist" and anti-colonial in regards to the Israeli-occupied territories,[42] 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.[43] In relation to a ban on conversion therapy in Israel, activists such as Maisan Hamdan criticized the conservative Islamic Movement, which is active in Israel and part of Knesset, 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.[38]
During the 2023 Israel–Hamas war, some Palestinians, who considered themselves part of the LGBT community, shared information in anonymously geotagged posts on Queering the Map. It was said that this provided a "rare glimpse" into perspectives of queer Palestinians, with many messages expressing solidarity with the Palestinian liberation cause.[44] Others said that Palestinians were sharing their "last words" on the platform.[45]
Summary table
Same-sex sexual activity legal
West Bank: Legal since 1951 for males; always been legal for females Gaza: Males (and females): No consensus on legal applicability of British 1936 Sexual offences provisions to homosexual conduct
Equal age of consent
West Bank: (18 years) Gaza: For males / For females
Anti-discrimination laws in employment only
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)
Same-sex marriages
Recognition of same-sex couples
Step-child adoption by same-sex couples
Joint adoption by same-sex couples
Gays and lesbians allowed to serve openly in the military
^Lucas Paoli Itaborahy; Jingshu Zhu (May 2014). State-Sponsored Homophobia(PDF) (Report). ILGA. pp. 16, 20, 55. Archived from the original(PDF) on 17 March 2017. Retrieved 1 November 2023.
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LGBT portal
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