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identity troubles

A quick overview of how we got here

Overview

Mere recognition of transgender women and queer identities in general in Iraq prior to April 2024 has been limited to a 2002 Ministry of Health instruction that was basically never applied. For the longest time, transgender women alongside queer people in general have been subjected to extreme non-state violence (honor killings notably). The act of honor killing is to cleanse an Iraqi family from the supposed indecency that an individual who belongs to the family has brought to it. Furthermore, honor killings are not limited to queer people, but these acts of pride-ridden, unjustified violence extend to women a lot of the time, notably when they’re accused of committing adultery. Many Iraqis, even now, still view honor killings as acceptable, and necessary in some cases.

Prior to April 2024, queer people were not even officially recognized by the law, which left them victims to whatever violence they might receive from local authorities or relatives, as they see fit. In April 2024, with the passage of Law No. 15 of 2024 [1][2], the state took an official stance on queer people. The passing of this law formally codified the criminalization of gender affirmation, gender-nonconforming expression and gender-affirming healthcare across federal Iraq.

To understand the actual lived reality of transgender individuals living in Iraq, it is necessary to look at the intersection between the religious (main source of justification for violence), legal (which in Iraq more often than not follows the religious perspective) and the medical aspects of transgender lives.

On April 27, 2024, the Iraqi Council of Representatives passed landmark amendments to Law No. 8 of 1988, which was originally titled the “Law on Combating Prostitution” and is now formally re-titled “Law on Combating Prostitution and Homosexuality” [3].

This law affects transgender women through two primary stances: the criminalization of gender expression and the explicit ban on biological gender transition [2][4].

Under Article 1 of the amended statute, the act of Takhanoth is defined as the intentional act of men imitating women (the usage of the word “imitation” will be important later) while excluding artistic or theatrical performance. Under Article 7 bis, any individual who engages in or promotes Takhanoth faces mandatory imprisonment for a period ranging from one to three years, as well as fines between 5 million and 10 million Iraqi Dinars [2].

Furthermore, the law restricts medical transition under Article 2(3), which prohibits altering a person’s biological sex based on “personal desires and personal inclinations”. Undergoing or attempting biological sex alteration is punishable by a prison sentence of 1 to 3 years, and this penalty extends to medical professionals as well. The same 1 to 3 years applies to any surgeon or physician who performs or assists in performing gender-affirming procedures [2]. Intersex conditions are excluded, but only for surgery to correct congenital defects, and only after a court order under Ministry of Health instructions [2].

Prior to this amendment, state security forces and judicial authorities weaponized vague morality provisions within the Iraqi Penal Code No. 111 of 1969 to suppress queer identities [5][6]. Here are some of them:

  1. Art. 401: “immodest acts in public.”
  2. Art. 402(1)(a): “indecent advances to another man or woman”
  3. Art. 404: “obscene or indecent songs or statements” in public.
  4. Art. 502: loitering “with indecent intent”.

In all of the articles which concern this matter, the words “immodest” and “indecent” are never defined, which makes it very easy to use these words against whatever act a court may see fit. It is plausible that in a society as conservative as Iraq, security personnel would interpret feminine attire, makeup or gender nonconforming presentation by biological males as “immodest” and “indecent”. Most of the articles mentioned have punishments ranging from 3 months to 2 years in detention with or without a fine.

On August 8, 2023, the Iraqi Communication and Media Commission issued an immediate directive banning all media, social media platforms, and licensed phone/internet providers from using the words “homosexuality” or “gender”. They mandated using the phrase “sexual deviance” instead [7][8]. One week later, the legislative draft to amend the Law on Combating Prostitution was officially introduced to the parliament by Raad al-Maliki, an independent member of the parliament backed by conservative, pro-Iranian Shia political factions. Al-Maliki explicitly stated that the goal of the bill was to “preserve the entity of the Iraqi society from deviation and calls for ‘paraphilia’ [abnormal sexual impulses] that have invaded the world.”

It’s notable that, instead of drafting a standalone law that concerns queer identities, those politicians probably found it easier to insert “homosexuality” and “gender transitions” directly within a severe anti-prostitution framework, which results in equating sexual orientation and transgender identities with criminal exploitation.

Furthermore, the August 2023 draft was significantly harsher than the version that eventually passed in April 2024. The proposed measures that were originally introduced on August 15, 2023 included the death penalty for same-sex sexual activity [9].

The death penalty was removed from the final text of the law, which passed on 27 April 2024 [10]. Western diplomats had warned beforehand that passage could harm Iraq’s political and economic ties, and several outlets reported the penalty was dropped after opposition from the US and Europe. After the law passed, US State Department spokesperson Matthew Miller said it “can be used to hamper free-speech and expression” and could deter foreign investment [10], while British Foreign Secretary David Cameron called it “dangerous and worrying” [10]. Human Rights Watch and Amnesty International also condemned the law [4][22].

Eleven months prior to the initial draft, in September 2022, legislators in the Kurdistan Region of Iraq had introduced a “Bill on the Prohibition of Promoting Homosexuality” which established a framework of fines and up to a year in prison for LGBT advocacy [11]. This was probably the beginning of Iraqi politicians finally taking official stances on queer identities.

So it’s now obvious that the April 27, 2024 landmark amendment wasn’t a sudden or unprovoked decision, but rather the culmination of a deliberate legislative campaign that traces its modern roots to September 2022, which represents a critical turning point in the way Iraqi political factions and lawmakers explicitly sought to codify anti-queer discrimination into statutory law.

Case No. 934/2011

In 2011, the Kirkuk Court of First Instance (Case No. 934/2011, 25 September 2011) ordered civil registries to amend the documents of a Christian transgender woman after she underwent gender-affirming surgery. Because she was Christian, the court consulted the Church, which found no religious impediment. According to Cairo52, the ruling meant her existing marriage to a woman could not stand under the Personal Status Law’s definition of marriage as between a man and a woman [12]. Iraqi law has no specific provisions on gender affirmation, so the case appears to be an isolated (and interesting) judicial exception. Law No. 15 of 2024, which criminalizes undergoing or performing gender-affirming interventions, makes similar rulings very unlikely.

Healthcare Access

In 2002, the Iraqi Ministry of Health issued Instructions No. 4 on the “correction of sex”, which created a formal review process for individuals seeking gender-affirming healthcare [13][14][15]. Under Article 1, committees were to be set up in a government hospital in each health directorate, including the directorates of Saddam Medical City (now just Medical City in Baghdad) and Yarmouk Hospital. They were to include specialists in urology, obstetrics and gynecology, psychiatry and cytogenetics, plus a legal official to explain the legal consequences to the applicant. Article 3 required psychological evaluation (for gender dysphoria), a clinical examination, imaging of internal reproductive organs, hormone testing and chromosome testing. Under Article 4, applicants diagnosed with “gender identity disorder” were referred to an initial psychiatric committee and then an appeals committee. If both approved, the applicant went through a rehabilitation program whose length the committee set. Article 5 allowed surgery in a public or private hospital after that period, and under Article 7, the health department was to notify the conscription and civil status departments of the correction [13].

On paper, this sounds quite insane, especially for the Baathist-era Iraq of the time, and this made Iraq quite special in this regard within the region, as it was the only Arabic-speaking country in the MENA region to include transgender people in medical policy, though in practice, the 2002 instructions were rarely, if ever, applied [16]. It seems like the 2002 Ministry of Health instructions have remained on the books for many years as the only legal text on the subject, but medical committees likely never approved surgeries. Of course, that was until Law No. 15 of 2024 officially changed this into an outright criminalization of such surgeries, with the exception of intersex conditions.

Even before said law, Jummar’s interviews describe psychiatrists who refused to support transition and note that, when dealing with psychiatrists, trans individuals were often met with hatred [15].

Shut out by both the medical and legal systems, many trans Iraqis turn to accessing hormones without the help of medical professionals. For example, trans Iraqi women typically buy a range of hormonal products over the counter, including estradiol tablets (sold as Estrofem), anti-androgens such as cyproterone acetate (Androcur, Androfarm) and bicalutamide (Casodex), and combined contraceptive pills such as Diane-35, which contains cyproterone acetate alongside a synthetic estrogen. For trans men, Sustanon is also bought from pharmacies, and some use gyms and online sports stores that sell T illegally [15].

As of the date of writing, the prices of some of these products in Iraqi pharmacies are as follows:

Estrogen

Anti-androgens

Testosterone

These prices were collected from personal pharmacy visits as well as the Iraq National Drug System (GUDEA)

Religious Perspectives

The religious sphere of Iraq is divided between Shias and Sunnis, with Shias making up 55% to 60% of Iraq’s population and Sunni Muslims approximately 40%. In terms of their perspective on gender transition, both distinguish between intersex conditions (khuntha), where corrective surgery is widely accepted, and gender dysphoria, where the area is a bit more contested.

Contemporary Shia authorities split between Iran, where religious rulings under Khomeini paved the way for state-recognized gender-affirming surgery, making Iran one of the few (and unexpected) places in the MENA region where gender-affirming surgery is legally accessible, and the Najaf Hawza in Iraq, which holds a more conservative perspective on the matter.

Khomeini began writing Tahrir al-Wasilah in 1964 during his exile in Turkey, and it was published by 1967 [17][18]. In the book, he ruled that changing one’s sex by surgery is not forbidden, and also addressed intersex people separately (Vol. 2, p. 626) [17]. In the mid-1980s, after a personal visit from Maryam Molkara, an Iranian trans woman (amazing story, by the way) [19], he issued a further fatwa in Persian confirming that sex reassignment was permissible. The reasoning for it lies on the principle of original permissibility, meaning an act is permitted absent an explicit prohibition. Truly, in Islam, be it in the Quran or sunnah, there is nothing that explicitly addresses transgender people in the modern sense. The source most cited against transition is a report from Ibn Abbas in which the prophet cursed men who imitate women and women who imitate men (Sahih al-Bukhari, Book of Dress, no. 5885) [20], but the problem is that this does not address trans people as much as it addresses effeminate men and masculine women, as the modern medical understanding of trans people is not “imitation” of the opposite sex. So the hadith’s application to trans people is an interpretive, uneducated step by the majority of Muslim scholars, likely due to conservatism. Anyhow, Khomeini’s 1980s fatwa launched legal recognition of sex reassignment surgeries in Iran, and his successor, Ali Khamenei, has also upheld it.

Ali al-Sistani is the leading religious authority for most Iraqi Shia Muslims. His office’s published rulings, which can be found on sistani.org [28], state that surgery and hormone treatment do not turn a man into a woman or vice versa and that such procedures involve looking at and touching the genitalia without Sharia justification. “And if the intended meaning of converting a male to female or vice versa is the transformation according to the internal and external reproductive organs which are the criterion for distinguishing one sex from the other, then it appears that this has not been achieved up to this present time”, they add [23]. He also addresses individuals with gender dysphoria, but only insofar as it is a mental illness which requires conversion therapy. In another place, Jurisprudence of Medical Practice, he writes (my translation) [21]:

Question 109: An intersex individual (khuntha) presented herself to a doctor, who decided to perform an operation to cut off the male organ, leaving the female organ incomplete, so she is not suitable for a husband since she lacks a complete female organ. Is it permissible for her to undergo an operation to revert to being male?

Answer: If she possesses the internal reproductive system of a female, namely the two ovaries and the uterus, in whole or in part, then she is female. If she possesses none of it, she does not become male merely by having something resembling a penis implanted.

Question 110: In Western countries, operations are performed to convert sex from male to female or vice versa, such that the body changes externally, but the person cannot become pregnant, experience menstruation, and the like. What is the ruling on such a person with regard to hijab and the application of the rulings of men and women to them?

Answer: The changes occurring in the external appearance have no effect, given that the person remains in their reality [i.e., their actual sex]. According to reality, the man is subject to the rulings of a man, and the woman likewise. And God knows best.

There’s also question 266, which is a bit lengthy, but the gist of it is basically the past two questions as well as the answer on his fatwa website: sex reassignment surgeries do not make a male into a female or vice versa, and “true sex reassignment surgery” has not been scientifically achieved yet [21].

The cleric Muqtada al-Sadr was among the most prominent political voices against queer Iraqis, in contrast to Ali al-Sistani, who only issued his perspective on the matter. In early December 2022, al-Sadr called for collecting one million signatures against the LGBT community [24][25], and a campaign launched in Sadr City in Baghdad on December 3rd [24]. He publicly pledged to avoid violence [26], but Human Rights Watch said that speeches like his undermine LGBT rights and fuel violence by armed groups, who already attack LGBT Iraqis with impunity [24].

On the Sunni side, most prominent Sunni jurists reject sex reassignment surgeries for transgender individuals based on arguments about “altering God’s creation”, drawing on Quran 4:119 as well as the earlier mentioned hadith [27].

What Does This Mean

Iraq’s laws, its health sector and its dominant religious authorities, as well as its intense conservative traditions, each shut the door on transgender women. With an extremely weak passport and family traditions, it’s also very difficult for trans individuals to find rescue outside of Iraq. Most trans people resort to applying for a scholarship abroad after high school, or fleeing to a neighboring/easy-access country in order to request UNHCR support, as Iraq fails to be a place where they can be safe.

Sources

  1. ILGA Asia, “IRAQ: Authorities must urgently repeal legislation criminalising LGBTIQ persons.” https://www.ilgaasia.org/publications/IRAQStatement2024 ↩︎

  2. Law No. 15 of 2024, amending the Law on Combating Prostitution No. 8 of 1988. Full text published in Al-Waqa’i al-Iraqiya, No. 4781, 1 July 2024. ILO NATLEX. https://natlex.ilo.org/dyn/natlex2/r/natlex/fe/details?p3_isn=116574 ↩︎

  3. Rudaw, 28 April 2024. https://www.rudaw.net/english/middleeast/iraq/28042024 ↩︎

  4. Human Rights Watch, “Iraq: Repeal Anti-LGBT Law,” 20 May 2024. https://www.hrw.org/news/2024/05/20/iraq-repeal-anti-lgbt-law ↩︎

  5. Iraqi Penal Code (Law No. 111 of 1969). ILO NATLEX. https://natlex.ilo.org/dyn/natlex2/r/natlex/fe/details?p3_isn=57206 ↩︎

  6. Human Rights Watch, “‘Everyone Wants Me Dead’: Killings, Abductions, Torture, and Sexual Violence Against LGBT People by Armed Groups in Iraq,” March 2022. https://www.hrw.org/report/2022/03/23/everyone-wants-me-dead/killings-abductions-torture-and-sexual-violence-against ↩︎

  7. Amnesty International, “Iraq: Authorities must immediately reverse media ban on the terms ‘homosexuality’ and ‘gender’,” August 2023. https://www.amnesty.org/en/latest/news/2023/08/iraq-authorities-must-immediately-reverse-media-ban-on-the-terms-homosexuality-and-gender/ ↩︎

  8. Arab News, “Iraq bans media from using term ‘homosexuality’,” 10 August 2023. https://arabnews.com/node/2352551 ↩︎

  9. Human Rights Watch, “Iraq: Scrap Anti-LGBT Bill,” 23 August 2023. https://www.hrw.org/news/2023/08/23/iraq-scrap-anti-lgbt-bill ↩︎

  10. Associated Press, “Iraq passes harsh anti-LGBTQ+ law imposing up to 15 years in prison, drawing backlash,” 28 April 2024. Via PBS NewsHour. https://www.pbs.org/newshour/world/iraq-passes-harsh-anti-lgbtq-law-imposing-up-to-15-years-in-prison-drawing-backlash ↩︎

  11. Human Rights Watch, “A Push to Silence LGBT Rights in the Kurdistan Region of Iraq,” 7 September 2022. https://www.hrw.org/news/2022/09/07/push-silence-lgbt-rights-kurdistan-region-iraq ↩︎

  12. Cairo 52, “Case No 934/2011 – Iraq.” https://cairo52.com/map-posts/case-no-934-2011-iraq/ ↩︎

  13. Iraqi Ministry of Health, Instructions on Sex Correction No. 4 of 2002. Dorar Iraq legal library. https://wiki.dorar-aliraq.net/iraqilaws/law/15891.html ↩︎

  14. Cairo 52, “Iraqi Proposed Amendments to Criminalize Transgender People are Neither Islamic nor Constitutional.” https://cairo52.com/?p=8163 ↩︎

  15. Jummar, “‘She Brought a Fatwa from Khamenei and Al-Azhar, But It Went Nowhere’: The Struggles of Trans People in the Iraqi Health Sector,” 13 March 2024. https://jummar.media/en/2024/03/13/she-brought-a-fatwa-from-khamenei-and-al-azhar-but-it-went-nowhere-the-struggles-of-trans-people-in-the-iraqi-health-sector/ ↩︎

  16. “تغيير الجنس و إشكالاته الشرعية و القانونية” [Sex Change and Its Legal and Religious Problems], Journal of the College of Law and Political Sciences, University of Kirkuk, Vol. 9, No. 34 (2020). https://search.emarefa.net/detail/BIM-1267194 ↩︎

  17. Ruhollah Khomeini, Tahrir al-Wasilah, Vol. 2, p. 626. https://lib.eshia.ir/21010/2/626 ↩︎

  18. Urania Institute, “Sex Reassignment in the Islamic Republic of Iran: A Comprehensive Overview.” https://urania.institute/en/posts/courses/iran/iran-transition/ ↩︎

  19. Wikipedia, “Maryam Khatoon Molkara.” https://en.wikipedia.org/wiki/Maryam_Khatoon_Molkara ↩︎

  20. Sahih al-Bukhari, Book of Dress, hadith 5885. https://sunnah.com/bukhari:5885 ↩︎

  21. Ali al-Sistani, published rulings, Jurisprudence of Medical Practice, Questions 109, 110, and 266. https://www.imamali.net/files/files/5a8cue4.pdf ↩︎

  22. Amnesty International, “Iraq: Authorities must urgently repeal new law criminalizing same-sex relations,” April 2024. https://www.amnesty.org/en/latest/news/2024/04/iraq-authorities-must-urgently-repeal-new-law-criminalizing-same-sex-relations/ ↩︎

  23. Ali al-Sistani, ruling on sex change, as summarized by IMAM Scholars (secondary source). https://ask.imam-us.org/qa/13676/what-is-the-islamic-ruling-on-gender-reassignment-surgery-according-to-sayyid ↩︎

  24. Associated Press, “Influential Iraqi cleric launches anti-LGBTQ campaign,” 2 December 2022. https://www.ksat.com/news/world/2022/12/02/influential-iraqi-cleric-launches-anti-lgbtq-campaign/ ↩︎

  25. Al-Monitor, “Iraq’s Sadr takes aim at LGBTQ community,” December 2022. https://www.al-monitor.com/originals/2022/12/iraqs-sadr-takes-aim-lgbtq-community ↩︎

  26. Shafaq News, “Al-Sadr launches a multi-million anti-homosexuality petition,” 1 December 2022. https://shafaq.com/en/Iraq/Al-Sadr-launches-a-multi-million-anti-homosexuality-petition ↩︎

  27. Serena Tolino, “Transgenderism, Transsexuality and Sex-Reassignment Surgery in Contemporary Sunni Fatwas,” Journal of Arabic and Islamic Studies, 17 (2017/2018), pp. 223–246. https://journals.uio.no/JAIS/article/view/6116 ↩︎

  28. Ali al-Sistani, Q&A on sex change (“تغيير الجنسيّة,” question 26653), sistani.org. https://www.sistani.org/arabic/qa/0407/ ↩︎

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