LGBT rights in Afghanistan

Lesbian, Gay, Bisexual and Transgender people in the Islamic Republic of Afghanistan face legal challenges not experienced by non-LGBT residents. Members of the LGBTQ+ community are forced to keep their gender identity and sexual orientation a secret in fear of harassment, intimidation, persecution, and death.[1] The religious nature of the nation and a lack of public education on the subject has limited any opportunity for public discussion, with any mention of homosexuality and related terms deemed taboo.[2] Afghanistan's Constitution establishes the prominence of Sharia law as a precursor to all other laws, policies, and regulations, allowing for religious interpretations by the State in prohibiting all forms of same-sex sexual activity.[3] Although the Penal Code of 1976 was reinstated after the American invasion of 2001, the country's new Penal Code of 2017 came into force on February 14, 2018.[4] The new Penal Code outlines and prohibits specific activities of a sexual nature, and is considered to disproportionately affect members of the LGBTQ+ community.

LGBT rights in Afghanistan
StatusIllegal: Islamic Sharia Law is applied
(Republic of Afghanistan)
PenaltyMaximum Penalty of Death
(Republic of Afghanistan)
Gender identityNo
MilitaryNo
Discrimination protectionsNo
Family rights
Recognition of relationshipsNo recognition of same-sex relationships
(Republic of Afghanistan)
AdoptionNo

Legality of same-sex sexual activity

Islamic Republic of Afghanistan

Penal Code

The Penal Code of 1976 was reinstated after the U.S. operation in the region, and it has several provisions that could apply LGBT people.

  • Article 398 – Offers lesser punishment for vigilante honor killings, which may involve a family member discovering their spouse or kin engaging in adultery, fornication or homosexuality.
  • Article 427 – Prescribes long prison terms for adultery and pederasty, the latter may be interpreted as including sodomy, in light of the fact that there are still legal punishments prescribed even if the people involved are legal adults. The maximum punishment increases if victim is under eighteen years of age, if the defendant is in a position of authority over the victim, if the defendant has repeatedly committed the crime or if the crime results in the spread of a disease. The law also increases the available punishment if a "violation of honor" takes place.
  • Article 512 states that a person who is engaging in public "watching" in a repugnant manner shall be imprisoned or fined.

This Penal Code has been replaced by the Penal Code Of 2018.[5]

Sharia law

The Constitution stipulates that Afghanistan is an Islamic republic, so it is possible for LGBT people in Afghanistan to be charged with violating Shariah law. This could happen in lieu of, or in addition to charges being brought under the penal code. Shariah law based punishment is more likely to occur in isolated, rural communities where private citizens and vigilant groups seek to punish anyone who does not follow strict Islamic morals.

In the cities, persons convicted of homosexuality are generally sentenced to prison. In 2004, an American advisor to the Afghanistan government was arrested and sentenced to a prison sentence for homosexual activities with an Afghan man. Other news reports have also noted that other men have been imprisoned for such engaging in same-sex sexual behavior.[6]

Contested territories
See also: War in Afghanistan (2001–present)
Al-Qaeda

Territory controlled by Al-Qaeda is ruled by a strict interpretation of Islamic or Sharia law. All sexual behavior outside of a lawful Islamic marriage is illegal, with the maximum punishment being death.

Islamic State of Iraq and the Levant
Main article: Persecution of gay and bisexual men by ISIL
Taliban

When the Taliban gained control of the country in the 1990s they criminalized all sexual relationships outside of the heterosexual marriage, and would often publicly execute men and women for committing fornication and adultery and for engaging in sodomy.

In 1994, the Taliban supreme leader, Mullah Omar, saved a boy from being sodomized by two feuding generals in Kandahar and when he was subsequently given control of the city he decreed that both violent and mutually consensual sodomy would be capital crimes.[7]

Recognition of same-sex relationships

The Afghanistan Law of Marriages (1971) stipulates that a legal marriage must be between two Muslim adults of the opposite sex, and that it must meet the rules of Islamic law.[8] While the law does not explicitly address the issue of same-sex couples, Article 41 of the Marriage Law stipulates that where the law is silent on a particular issue, it shall be decided based on the principles of Islamic law. Hence, Afghanistan family law does not recognize same-sex marriages, civil unions or domestic partnerships. Likewise, the Afghanistan Law on Marriages, Weddings and Circumcision (1949) speaks of marriage as something between a Muslim man and woman and states that marriages must follow Islamic law.

Article 430 states that it shall be treated as "Instigation of Delinquency" if an adult promotes or assists in the act of minors (under 18) being involved in the act of adultery, homosexuality or prostitution.

Discrimination protections

As of 2009, no law exists in Afghanistan to address discrimination or harassment on the basis of sexual orientation or gender identity. In response to foreign inquiries, the Afghan Social Democratic Party stated that it "favored an international effort to fight the AIDS-HIV pandemic, but that homosexuality and same-sex marriages are opposed by all great religions." No political party or interest group has expressed support for LGBT rights.

Afghanistan law currently prohibits a political party, interest group or social club from advocating anything that is in opposition to Islamic morality. Absent a change in the law, it is unlikely that a political or social organization advocating LGBT rights will be permitted to exist and promote its viewpoints.

Social attitudes

Afghanistan's population is over 99% Muslim, and the country's Constitution stipulates that Islam shall be the official religion. Homosexuality and cross-dressing are widely seen as taboo and indecent activities, owing to traditional Islamic views concerning appropriate gender roles and sexual conduct.

When publicly discussed, homosexuality is often linked with prostitution and pedophilia and the level of awareness about sexual orientation or gender identity is limited. In 2011, Afghan news reporters interviewed men who had LGBT-pride symbols on their vehicles, to find out that the men were unaware of the meaning of the rainbow flags and stickers, thinking that it was just another western fad, and began quickly removing the rainbows to avoid being seen as a LGBT people or supporters of LGBT rights.[9]

The US Marine Corps' handbook for Operational Culture for Deploying Personnel (May 2009) states that "homosexual behavior is relatively common, but taboo, in rural Afghanistan, because there are no other outlets for normal sexual energies.[sic]"[10]

In 2012, Nemat Sadat, a former professor of political science at American University of Afghanistan, mobilized a LGBT movement[11] and on August 22, 2013, he became the first public figure[12] to come out as gay and campaign for gender freedom and sexual liberation. Sadat is considered to have broken the taboos on cross-dressing and homosexuality in Afghanistan.[13]

Homosexual practices with boys
Further information: Prostitution in Afghanistan

Militia members generally do not have access to women, so boys are sometimes kidnapped to be humiliated and raped by adult men.[14] Other boys become prostitutes for adult men, regardless of their sexual orientation.

These men involved are sometimes called bacha bazi in Persian and seem to flourish in the big cities of Afghanistan, possibly due to poverty and the strict social taboos surrounding interaction between men and women. A law has been enacted prohibiting Afghan soldiers from having their "ashna" live with them.[15]

In 2007, reports stated that the practice of bacha bazi is still prevalent in parts of northern Afghanistan. This practice involves teenage boys being dressed in women's clothing and made to participate in dance competitions and engage in sexual acts.[16]

HIV-AIDS

Prior to 2003, little or no HIV-AIDS education or treatment existed. As of 2008, the official number of people living with HIV-AIDS is 504, although the actual number is suspected of being higher, possibly in the thousands.[17] Low literacy rates, weak infrastructure and traditional social mores make it difficult to introduce comprehensive public health education initiatives.

Thus far, the bulk of the available resources have focused on fighting drug addiction and, to a lesser extent, the commercial sex industry.[18] Yet, what little is reportedly being said about sexuality is in the promotion of abstinence-only sex education programs.[18]

In 2009, the first HIV-AIDS treatment center opened up in Kabul, with more clinics promised to open soon. Access to anti-retroviral drugs is, at best, limited and preventive initiatives often conflict with deep-rooted taboos.[19] Efforts are being made to educate local and religious leaders in the hopes that they can legitimize greater public education.[19]

Legally, Article 373 of the Afghanistan criminal code stipulates that a person that spreads a "dangerous disease" by accident shall be fined, but if the disease results in death or permanent disability the punishment shall be the same as if it were an accidental murder.

Censorship

Article 32 of the Afghanistan Press Law Edict (2002) prohibits publications from promoting "incitement to depravity." Likewise Article 27(D) of the Afghanistan Postal Law (1973) prohibits the usage of the postal service to exchange material that is "repugnant to public decency and morals." These two provisions could be used to censor the distribution of materials advocating LGBT rights or the general topic of sexual orientation and gender identity issues.

In 2009, an Afghan man named Hamid Zaher published his memoir titled, "It is your enemy who is dock-tailed". In the book, Zaher talks about growing up gay in Afghanistan, and how he eventually had to leave his country to avoid anti-gay discrimination. Because the memoir deals with homosexuality and is critical of homophobia, it cannot be distributed in Afghanistan itself, and Zaher's family has cut off all contact with him.

Human rights reports

2017 United States Department of State report

In 2017, the United States Department of State reported the following, concerning the status of LGBT rights in Afghanistan:

  • "Discrimination against persons with disabilities and ethnic minorities and discrimination based on race, religion, gender, and sexual orientation persisted with little accountability."[20]
  • Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
    "The law criminalizes consensual same-sex sexual conduct, and there were reports of harassment and violence by society and police. The law does not prohibit discrimination or harassment based on sexual orientation or gender identity. Homosexuality was widely seen as taboo and indecent. Members of the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community did not have access to certain health services and could be fired from their jobs because of their sexual orientation. Organizations devoted to protecting the freedom of LGBTI persons remained underground because they could not legally register with the government. Members of the LGBTI community reported they continued to face discrimination, assault, rape, and arrest by security forces and society at large."[20]

Summary table
Legality Penalty
Same-sex sexual activity (Execution)
Equal age of consent
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
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood
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See also

References
  1. Emadi, Hafizullah (2019). "The Politics of Homosexuality: Perseverance of Lesbian, Gay, Bisexual and Transgender (LGBT) Community in a Repressive Social Milieu in Afghanistan". International Journal on Minority and Group Rights. 26: 242–260.
  2. International Lesbian, Gay, Bisexual, Trans and Intersex Association: Lucas Ramón Mendos, State-Sponsored Homophobia 2019 (Geneva; ILGA, March 2019).
  3. "Afghanistan | Human Dignity Trust". www.humandignitytrust.org. Retrieved 26 February 2020.
  4. UNAMA (22 February 2018). "UNAMA welcomes Afghanistan's new penal code - Calls for robust framework to protect women against violence". United Nations Assistance Mission in Afghanistan.
  5. "UNAMA welcomes Afghanistan's new penal code - Calls for robust framework to protect women against violence". ReliefWeb. 22 February 2018. Retrieved 20 January 2020.
  6. "Afghanistan". Sodomy Laws. Retrieved 20 January 2011.
  7. Reid, Tim (12 January 2002). "Kandahar Comes Out of the Closet". Sodomy Laws. Archived from the original on 11 September 2004. Retrieved 14 February 2015.
  8. "Law on Marriage - 1971 - Official Gazette No. 190, published 1971/08/08 (1350/05/17 A.P.)". AsianLII. 8 August 1971. Retrieved 20 January 2020.
  9. Arbabzadah, Nushin (24 May 2011). "Afghanistan's accidental gay pride". The Guardian. Retrieved 15 May 2016.
  10. "Afghanistan: Operational Culture for Deploying Personnel" (PDF). Public Intelligence. May 2009.
  11. Sadat, Nemat (21 February 2014). "As Russia Runs For the Closet, Afghanistan Comes Out". Out. Retrieved 15 May 2016.
  12. Allen, Paddy; Jackson, Nicole (15 November 2013). "Over the rainbow: what is it like to be gay around the world?". The Guardian. Archived from the original on 26 December 2015.
  13. jay.c (10 July 2016). "Despite Death Threats A Gay Leader Emerges In Afghanistan". Corcoran Productions. Retrieved 15 May 2016.
  14. Carter, Sara A. (20 December 2010). "Afghan sex practices concern U.S., British forces". Washington Examiner. Archived from the original on 3 August 2011.
  15. Reynolds, Maura (3 April 2002). "Kandahar's Lightly Veiled Homosexual Habits". Sodomy Laws. Retrieved 20 January 2011.
  16. "Afghan boy dancers sexually abused by former warlords". Reuters. 19 November 2007. Retrieved 20 January 2011.
  17. "UNICEF Afghanistan". UNICEF. Retrieved 20 January 2011.
  18. "Kabul's Drug Epidemic Requires Unique Approaches in HIV/AIDS Prevention". Asian Development Bank. 20 December 2007. Archived from the original on 5 December 2008. Retrieved 20 January 2011.
  19. Rajashri (8 August 2008). "Ministry Says 2,500 Afghans HIV Positive". Medindia. Retrieved 20 January 2011.
  20. "AFGHANISTAN 2017 HUMAN RIGHTS REPORT" (PDF). U.S. Department of State. Archived from the original (PDF) on 20 April 2018. This article incorporates text from this source, which is in the public domain.
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