(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
LEGAL INFORMATION
Consensual sex between same-sex couples is unlawful in Iran. The Islamic Penal Code of Iran of 1991 defines Lavaat (sodomy) as consummated sexual activity between males, whether penetrative or not. Same-sex relations between women, or Mosaheghe, are defined as ‘homosexuality of women by genitals’. Both Lavaat and Mosaheghe are punishable by death; the Sharia judge decides on how to carry out the killing. In the case of sodomy (arts. 108–126) the death penalty applies if both the so-called ‘active’ and ‘passive’ persons are mature, of sound mind and have free will.
If consenting mature women, of sound mind, are found to have engaged in Mosaheghe (arts. 127–134), the punishment is 100 lashes for each party. If the act is repeated, 100 lashes are enforced each time and the death sentence will be issued the fourth time the persons are so charged. If Mosaheghe is proved by the confession of the doer and she repents accordingly, the Sharia judge may request the leader (ValieAmr) to pardon her.
If a mature man of sound mind has sexual intercourse with a minor, the adult receives the death penalty; the minor will be subject to Ta’azir of 74 lashes if he has not been forced to commit the offence under duress. If a minor commits sexual intercourse with another minor, both of them will be subject to Ta’azir of 74 lashes unless one of them committed the offence under duress. The Islamic Penal Code of Iran gives no mention to adult women having sex with underage women.
Articles 1258, 1321 and 1324 of the Iranian Civil Code refer to the standards of proof required for an individual to be found guilty of charges against them. Articles 117, 120 and 128 of the Islamic Penal Code of Iran stipulate that lesbian acts and sodomy are ‘proved’ by the courts by the ‘testimony of four righteous men who might have observed it’. Human Rights Watch has argued that, in practice, these provisions are subject to varying interpretation and abuse.
CASE LAW
Supreme Administrative Court, 13 January 2012, KHO:2012:1, Finland.
Asylum applicant fled Iran following his sentencing for homosexuality and ultimately gained status in Finland.
HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department
The Supreme Court of the UK eliminated the so-called ‘discretion’ for applicants claiming asylum from persecution on the basis of sexuality. For a return of someone who has a well-founded fear of persecution on the basis of sexuality, the new test essentially requires a finding that the applicant would choose to live discreetly as a matter of personal preference, rather than as a function of fear for social or formal punishment or violence.
XY (Iran) v. Secretary of State for the Home Department, [2008] EWCA Civ 911, United Kingdom: Court of Appeal (England and Wales), 31 July 2008
This UK case, prior to the elimination of the discretion test in HJ and HT, concerns the rejection of an asylum application based on the expectation of discretion in sexual relationships.
HS (Homosexuals: Minors, Risk on Return) Iran v. Secretary of State for the Home Department, [2005] UKAIT 00120, United Kingdom
Successful appeal of removal decision for Iranian gay man in the UK during ‘discretion test’ era.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
In 2007, Iranian President Mahmoud Ahmadinejad stated that homosexuality is a “despicable act … dirty and harmful to humanity” and declared, “In Iran, we don’t have homosexuals.” In 2012, The Guardian reported that an influential Iranian cleric had referred to homosexuals as inferior to dogs and pigs.
The number of gay Iranian men executed for homosexuality appears to have risen sharply in recent years. The British Foreign and Commonwealth Office has expressed concern that LGBTI men and women are frequently charged with other crimes such as rape, fraud, or robbery in order to justify their execution.
In 2011, The United Nations Human Rights Committee raised its concern for members of the LGBTI community in Iran who face ‘harassment, persecution, cruel punishment and even the death penalty’. It is also noted that these persons are discriminated against in terms of access to employment, housing, education and health care, as well as social exclusion within the community.
Human rights organisations have shown how LGBTI persons are routinely harassed by the state and society at large, with a 2012 study demonstrating how the use of Internet by LGBTI Iranians is a rare, yet dangerous, opportunity to express one’s LGBTI identity and build a sense of community.
Human Rights Watch documented how many Iranian families view homosexuality in their children as an illness and take them to psychologists to be ‘cured’. Transgender persons are encouraged by the state to seek medical help in the form of gender-reassignment surgery. Sex changes have been legal in Iran for nearly 30 years, with the government providing up to half the cost of the operation for those with limited financial resources. This is seen as helping trans-gender persons to align themselves with the natural societal order.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
No NGOs supporting LGBTI persons in Iran are currently listed here, but we welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
Dr Scott Long
Email: scottlong1980@gmail.com
Dr Scott Long, Ph.D., Harvard, has led a long career in LGBTI rights activism focusing on Eastern Europe, Sub-Saharan Africa and the Middle East and North Africa. He has taught in Hungary, Romania and the Human Rights Program of Harvard Law School. Dr Scott Long was programme director of the International Gay and Lesbian Human Rights Commission (IGLHRC) from 1996 to 2002 and led the organisation’s advocacy at the 2001 UN General Assembly’s Special Session on HIV/AIDS. He founded and directed the Human Rights Watch’s LGBT Rights Program until 2010 and has produced reports on the situation of LGBTI persons in Egypt, Iraq and Iran, discrimination against binational same-sex couples in the United States, as well as working with LGBTI activists in Russia. Dr Scott Long blogs on human rights-related issues on http://paper-bird.net/.
Researched by: Amber Stechman
Email: amber.stechman@gmail.com