For over a century, Tunisia’s Criminal Code has imposed a double sentence upon LGBTQI+ persons. From the rectal examination—to which the majority of prisoners are forcefully subjected—to mistreatment carried out by other prisoners and prison guards, these individuals are punished for their gender identity and/or sexual orientation. Before the eyes of the international community, however, Tunisia denies persecution of LGBTQI+ persons, affirming that the number of arrests based on the provisions of article 230 have declined since 2017.
During the UN Human Rights Council’s Periodic Global Review in February 2023, Tunisia denied the prosecution of LGBTQI+ persons on the basis of their gender identity and/or sexual orientation. In its response, the government stated that only three individuals have been prosecuted under article 230 since 2017, and that these persons were not subjected to the rectal examination. It noted that this procedure is only used in Tunisia as proof in a case where the rape victim is a minor, and not to prosecute LGBTQI+ persons.
However, official data obtained by Damj, the Tunisian Association for Justice and Equality, from the Justice Ministry in 2021 contradict this version which Tunisia presented to the Human Rights Council. The Ministry recognizes that the number of persons imprisoned on the basis of article 230 of the Criminal Code reached 154 in 2020. The highest number following the revolution was reached in 2015, with 320 prisoners including four women. That number reached 222 in 2018 and 177 in 2019.
Testimonies contradict the official version
Nawaat obtained the testimony of A.J., arrested on the basis of article 230 and sentenced to three months in prison. In 2018, he was placed in the Civil Prison of Sidi Bouzid. At 22 years old, A.J., a member of the LGBTQI community, was visiting his partner in a delegation of the Sidi Bouzid governorate. An argument broke out between his partner and a neighbor. A.J. was arrested along with his partner and the neighbor. He told Nawaat:
I didn’t understand why I was arrested with my partner and his neighbor, especially since there was no legal proof of the accusation held against me. Following a complaint filed by the neighbor, the police confiscated my partner’s telephone and obtained the videos and photos that were on it, but found no proof which incriminated me. We were placed in two separate cells at the police station in Menzel Bouzayene; I was young then. One of the prison guards tried to harass me by showing me his genitals. I defended myself, so he retaliated by urinating on me. At that moment, I thought of escaping. All of the guards were asleep that night. I managed to take off my handcuffs. I searched the area, then recovered my ID card and the minutes of my interrogation. I climbed the fence outside the police station and fled across olive groves and hills. The next day, I found myself in the town of Meknassi. But I had no chance: the police were already on my heels. A car drove in front of me. I fled and hid inside the cultural center. The people inside turned me over to the police, who came to arrest me. In their alert, the guards had presented me as a terrorist on the run.
A.J. was once again interrogated, beaten, and insulted because of his gender identity. His phone was confiscated and one of the guards called his father to inform him that his son was in custody for homosexuality. This call was enough for his family to cut off all ties with A.J. His father never visited during the entire period of his son’s incarceration. A.J. was brought before the public prosecutor and sentenced to six months in prison.
As A.J. related: “The prison guards retaliated against me, first because of my gender identity, then because of my attempted escape. Upon my arrival to the Civil Prison of Sidi Bouzid, they ordered me to undress, and beat me. Then, they threw me in a cell with prisoners between 18 – 30 years old. They were all aware of the accusation against me. That’s why they wouldn’t let me sleep in the cell: some physically attacked me and forced me to sleep in the bathroom. Every day, in the morning and evening, I was slapped twice by prison guards as they took count of prisoners. That’s when I understood that I was going to be put through hell.”
At the prison of Sidi Bouzid, inmates were separated into three rooms according to their age: the first, called the youth room, was for inmates between the ages of 18 to 30. The second was for those between 30 and 45, while the last room was reserved for the oldest prisoners.
A.J. was transferred into the last room, where his fellow prisoners forced him to sleep in the bathroom. According to him, the transfer of prisoners from one room to another took place upon the request of the “cabrane” (cell leader) in coordination with the prison guards, especially in the case that a prisoner pleased him. A.J. recounted:
I was constantly harassed and blackmailed: either I accepted sexual relations with the “cabrane” or one of the prisoners, or else it was hell, like sleeping in the bathroom and being deprived of meals. Everyone joined against me because of my gender identity. One time, the guards forced me to sleep in the courtyard. I didn’t give in to the cell leader’s request, so he beat me. Another time, I was forced to the room which he oversaw, but I categorically refused. One day, I was being led as usual when I was quickly returned to the youth room owing to a prison inspection. At the end of the visit, I was returned to the room for the oldest prisoners, where I was beaten and strangled. I almost died because I was asthmatic. The infamous cabrane, who was sentenced to death, threatened to kill me if I complained to the prison director. So I chose to remain silent.
A.J. explains that this harassment by fellow inmates was due to the fact that they had attended the same hearing and were aware of the charges against him. After that, they would beat or harass him. The situation led him to ask the judge for a closed hearing and also, at times, to deny his gender identity in order to avoid being beaten and humiliated.
A report considers that the situation for LGBTQI+ persons in prisons is extremely concerning, given that they are exposed to all kinds of mistreatment.
A.J. continued his testimony: “I endured a great hardship in prison, but I stayed strong and faced it with courage. I was released after having served half of my sentence. I cried a lot once I was out, but managed to recover. That’s why I had the courage to tell my story, so that it can serve as a lesson for all those who have experienced or will experience prison as a result of article 230. I often think of young people and individuals who struggle to overcome this ordeal, especially because their physical and psychological integrity are at stake. We live in a great prison that is society, especially for those who come from a conservative environment. The prison experience is particularly cruel for LGBTQI+ persons, because their punishment is twofold, delivered by other prisoners as well as prison guards, on account of their gender identity. Some even feel that they have to deny who they are in order to enjoy some semblance of peace.”
The collective exhibition “The era of 230” lasted four days from May 17-20, 2017 at Dar Bach Hamba in the Medina of Tunis. Initiated by the feminist association Chouf which advocates for the rights of sexual minorities in Tunisia, the exhibition was the first of its kind in Tunisia. “The era of 230” grouped together 12 artists including painters, photographers and cartoonists who denounced, each in their own way, article 230 of the Criminal Code which criminalizes homosexuality. During the United Nations’ Global Periodic Review, Tunisia admitted for the first time article 230’s non-compliance with the Constitution of 2014, without indicating any intent to abrogate it.
A report published by the association Intersection, “Queer in Tunisia: the true faces of an absent justice – documentary portraits of violence and exclusion,” presents the testimonies of people who have experienced different forms of violence because of their gender identity and/or sexual orientation. The testimony of Isis, a transgender woman sentenced to three months in prison after retaliating against a man who had harassed her, is revelatory. She describes how she fell into a deep depression as a result of her incarceration:
Prison is a horrifying place; we shouldn’t wish it for anyone. You could never imagine how the guards treat us: constant insults, with unbearable obscenities to intimidate us. In the cell where I was placed, if you refuse someone’s sexual advances, he’ll incite everyone to rape you.
Isis believes that the situation has become more complex under the current political regime. Arrest campaigns targeting transgender persons, especially during New Year celebrations, have intensified, and imprisonment has become the inevitable outcome for this community.
LGBTQIA+ persons and the organizations that defend their rights are facing increased repression by the regime in place. This repression compounds the community’s vulnerability and the risk of imprisonment. In this context, what is the situation that LGBTQIA+ individuals are confronted with? Where is there room for resistance by activists in a political context marked by the marginalization of issues relating to individual and collective liberties?
Double sentence for transgender persons
LGBTQI+ persons who are arrested or incarcerated face extremely difficult circumstances. For transgender persons, the situation is even more delicate because their punishment in prison is two-fold. “Transgender women who are incarcerated and transferred to institutions for men face a double sentence,” explains Badr Baabou, one of the founders of the association Damj. As Baabou tells Nawaat.
We have collected a number of testimonies from transgender prisoners, in particular relating to the Mornaguia Prison, which has a special wing called “HW” or “Bit essyouda” (the Lion’s Den), where transgender prisoners are placed. These testimonies share the same observation: upon their arrival, transgender prisoners are humiliated by prison guards. They are completely undressed under the vicious gaze of a crowd of guards curious to see bodies that appear to be feminine, but have male genitalia. They are then transferred to the special wing—which, in reality, is just an isolation cell—under the pretext of protection. However, there they endure the most degrading treatment: they are forced to completely shave their head. We denounced this practice at the Mornaguia Prison, and the prison administration reacted favorably at first. But since 2023, it has resumed this practice.
Since the Ben Ali era, the Messaadine Prison for women in Monastir and the one in Mornaguia have reserved special wings for transgender prisoners. Their experience in the women’s prison is no different from what transgender persons endure in the men’s prisons, where they are constantly humiliated by other prisoners. For example, they are refused access to common spaces such as the kitchen or bathrooms.
Between 2011 and 2018, the number of transgender prisoners reached 3,000, according to the official statistics obtained by Damj. All transgender women experience sexual harassment and the trafficking of their bodies: they are “sold” by other prisoners, often for a pack of cigarettes, obviously without their consent. The majority are kept under the control of a prisoner, often the cell leader, who chooses a transgender prisoner as a sexual partner, without her consent. If she resists, she is punished and transferred to another cell reserved for prisoners serving long sentences, often for rape crimes. Transgender women thus become prey for these frustrated prisoners, Baabou notes.
Some transgender women are sentenced under article 231 of the Criminal Code, which stipulates: “Outside the cases outlined by regulations in place, women who, through their gestures or speech, offer themselves to passersby or turn to prostitution even on an occasional basis, may be punished with six months to two years in prison (…).” This in itself constitutes the government’s recognition of their gender identity. However, these women are imprisoned in institutions for men. Upon their release, they are overcome by serious psychological crises which lead some to attempt suicide or self-mutilation. Baabou discusses this issue with Nawaat:
Transgender prisoners leave prison psychologically broken, with the exception of a few who have had the support of a mother or sister. Others find themselves imprisoned at home. We have a few testimonies from former transgender prisoners, who were closed up in an isolated room in the family’s home, with their head and eyebrows shaved. Others were thrown out of the home, and found themselves homeless and easy prey for sexual exploitation or obligated to turn to prostitution in order to feed themselves and pay rent. All of these tribulations leave them deeply wounded, pushing some near to madness.
Amnesty International’s definition of torture is “when somebody in an official capacity inflicts severe mental or physical pain or suffering on somebody else for a specific purpose.” Tunisia ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 25 of the Tunisian Constitution stipulates that the state protects human dignity and physical integrity, bans physical and moral torture, and notes that crimes of torture are not subject to any statute of limitations. Nevertheless, testimonies from queer persons and NGO reports—which authorities flaunt in international forums—show that these national and international laws ratified by Tunisia remain, in practice, commitments unfulfilled.
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