While in developed societies, efforts are being made to give more rights and remove barriers and discrimination against LGBTQs, in developing and more traditional societies, such as Iran, they still have to hide their sexual identity and relationship. However, with the spread of the Internet and global village, regardless of the issue of political boundaries, human beings become closer to each other and this taboo is being broken and seems to be increasingly accepted among the people; The issue, of course, is different at the macro level, and politicians in these countries, such as Iran, who sometimes claim to be appointed by God and religiously run the country, stand up to this issue. It is shameful that in these traditional patriarchal societies, such tendencies are used as an insult to name each other.
There is not much discussion about LGBTQs in the laws of Iran. In civil law, under the subsection of rules of inheritance, there are references to them, indicating how their share of inheritance is determined. According to Article 939 of this law, “… if the heir is hermaphrodite and be one of a group of heirs which are such that the males take twice the portion of the females, his portion of the inheritance is determined as follows: If the indications of masculinity are the greater, he takes the portion of a boy of his degree; and if the indications of femininity are the greater, the hermaphrodite takes the portion of one girl of that degree; and if neither the masculine nor the feminine indication is preponderant, the hermaphrodite will take one- half of the sum of the portions of one boy and one girl of his degree” Although this is only for hermaphrodites, the status is not clear to other LGBTQs, and the share of inheritance should be apparent based on the sex with which they were born.
The Family Protection Law in article 4(18) gender reassignment is mentioned and considers the family courts competent to hear. Of course, in the court decision, it must also be allowed to apply for changes in the identity cards, otherwise, the person must go to court again after the gender reassignment.
What is mentioned above is just about hermaphrodite people. But there is no mention of homosexuals in Iranian civil law. In criminal law, however, the situation is different. Articles 233 to 241 of the Islamic Penal Code deal with the issue of homosexuality. According to Article 234, “The hadd[1] punishment for livat[2] shall be the death penalty for the active party if he has committed livat by using force, coercion, or in cases where he meets the conditions for ihsan[3]; otherwise, he shall be sentenced to one hundred lashes. The hadd punishment for the passive party, in any case (whether or not he meets the conditions for ihsan), shall be the death penalty.
Note 1- If the active party is a non-Muslim and the receptive/passive party is a Muslim, the hadd punishment for the active party shall be the death penalty.” Thus, the passive man is sentenced to death, while the active man is sentenced to one hundred lashes and in case he is married or had sex without the other party’s consent, the perpetrator is also sentenced to death. In the case of a lesbian, the punishment is one hundred lashes. However, according to Article 136 of this law, in case of recurrence of a “crime”, in the fourth instance, the death sentence will be issued.
The roots of these rulings are in Islam and the Quran, and for this reason, the flirtation of gay men is called “Livat”, which is mentioned in the Quran regarding the people of Lot. By believing in the punishment of that people, they believe in the necessity of execution. However, the issue of gender reassignment, although it is done in Iran, there are serious opponents who, referring to verse 119 of Surah Nisa, believe that this surgery is “interference in the creation of Allah” and is forbidden.
In Islamic jurisprudential sources (Fiqh), the birth of neutral people is mentioned as follows: “At the time of marriage, the marriage must be concluded during the day and execute at night. It is up to the man to place his right hand on the forehead of the woman during intercourse and to mention the names of Almighty Allah. If he does not do so, the Devil will be present in the room and at the same time he will penetrate the vagina and the child resulting from this intercourse will be hermaphrodite.” (See Sharh al-Lama’ah al-Damashqiyyah; Shahid Thani; Kitab al-Nikah). concluding marriage means reading the marriage sermon and accepting the couple, and executing it means having intercourse. Of course, again, there is no mention of homosexuals here. Interestingly, on the one hand, the sentence of homosexuality is mentioned from one hundred lashes to death, but on the other hand, sexual intercourse with a slave (male sex slave) is allowed.
Finally, it should be noted that the existence of conditions for gender reassignment surgery does not mean having the rights and acceptance of society, and they may be rejected by their family after the operation in the name of “honor and dignity.” The issue is worse for homosexuals, and a month ago in the latest media sample, Alireza Fazeli Monfared, a 20-year-old man from Ahvaz who managed to get an exemption from military service because of his sexual identity, after receiving an exemption card and his family’s knowledge of this subject was killed by his brothers and cousins and was beheaded.
Dedicated to Alireza Fazeli Monfared, his innocent lost youth
Hooshmand Rahimi (Lawyer) – 16 June 2580
[1] Religious punishment, the punishment is indicated in Quran or Islamic jurisprudence
[2] Sex of two men
[3] Ihsan means being married and having the opportunity to have sex with one’s spouse
