Author: Yash Arjariya, I year of B.A.,LL.B.(Hons.) from Hidayatullah National Law University, Raipur, Chhattisgarh.
Co-author-1: Ansh Bhardwaj, I year of B.A.,LL.B.(Hons.) from Hidayatullah National Law University, Raipur, Chhattisgarh.
Co-author-2: Rajwardhan Singh Rajput, I year of B.A.,LL.B.(Hons.) from Hidayatullah National Law University, Raipur, Chhattisgarh.
HISTORY OF HOMOSEXUALITY IN ISLAM
In 610, the word of ALLAH was revealed to Prophet Muhammad by Angel Gabriel. A new religious order named ISLAM literally meaning the RELIGION OF PEACE was born with Prophet Muhammad being at its pinnacle as the messenger of ALLAH. From the midst of the shifting sands of deserts, Prophet Muhammad embarked on journey to propagate ISLAM. Gradually, the religion became akin to the Arabic world and adopted many old and prevalent practices and added some new. Prophet Muhammad dictated the Holy Quran, The Holy Book of Islam. This book is also famously regarded as “the living word of ALLAH”. In addition to this, the HADITH served as collection of memory of the community that had lived during the times of Prophet Muhammad, in the form of saying and anecdotes. The Holy Quran also comprises of the punishments that a Muslim must be subjected to if he/she is not able to walk on the path shown by the Quran. The hadith also served as medium to reinforce the teachings of Islam and Islamic laws concerning homosexual practices.
Homosexuality has never been directly condemned in Quran but the stories in the Quran speak for themselves. For example, in the story of LOT AND SODOM, it has been described that ALLAH, out of his immense compassion, forgave LOT and his family after he had severed all ties with SODOM and its people. SODOM had later been destroyed. In the 604 long pages of Quran, the most explicit vilification of homosexualpractices traced to the sura (7:80-84): "Will you persist in these indecent acts which no other nation has committed before you? You lust after men instead of women. Truly, you are a degenerate people, “the answer from people was: "Banish them from your city. They are men who would keep chaste. " We banished the person and all his family but his wife, who stayed. You should consider this as the evil-doers' faith.
These verses incontrovertibly prove that reason for which SODOM was destroyed was nothing else but HOMOSEXUALITY. Here, homosexuals are being referred to as evil-doers. These verses not only a condemn Homosexuality but also reflect on the punishment that such a person must be given. Although, the sura mentioned above clearly depicts the Islamic point of view on Homosexuality, it doesn’t’t specify the reason for such strong denouncement. The question still lies unanswered and that has become a major reason for the dissension in today’s times.
Strikingly, the Quran has been very specific about certain things, like, the number of wives one can have, it appears very rare to not include direct explanation of the prohibition against a sin that can get harsh punishment. Besides above mentioned sura, only other place where homosexuality has been referred to in the Holy Quran, outside the fabric of SODOM, is the paragraph where punishment has been described in “4:15”: "If two men among you commit indecency, punish them both. If they repent and mend their ways, let them be. God is forgiving and merciful.” This can be attributed to some of the only mentions in Qur'an makes with regards to punishments for sodomy”.
SCHOOLS OF LAW
Notable historian CE BOSWORTH had suggested that the severity of the punishment depended upon the fact that whether the sodomites were celibates or married. A less harsh punishment was awarded to a celibate. There were other factors also that led to a variation in the severity of the punishment. The different schools of law had their own respective interpretations and the degree of punishment was to their likening. Hanbali and Hanafi School of Law were the only two who came closest to describing the kind of punishment they would impose. They would group sodomy with other zina. Stoning was the punishment that these schools of law would impose upon anyone who was found guilty of sodomy. The other schools of law would follow flogging as punishment. IBN HAZM further reduced the severity of punishment to ten lashes. This portrays that the punishments were not homogenous.
THE ROYAL COURTS
Stories, records and tales of Royal Courts have been documented in a much better way than the records of village life. It is undoubtedly inferred from the readings that the noblemen were more likely to engage in such practices than the commoners who lived in a much more orthodox society. There are a few evidences of sodomy in the royal courts but are filled with fallacies that some of us might take as true. Here is an example.
MUHAMMAD AL-AMIN
Abbasid Empire under Muhammad Al-Amin show concrete historical facts that homosexuality was at its pinnacle in the courts itself. Muhammad Al-Amin claims that the practices had existed since the time he was a child.
MURAD-IV
In 1623, MURAD IV was proclaimed Ottoman Sultan at the tender age of 10. Tales from his era, narrate a different and rather astonishing story. It has been learned that in his court, homosexual practices were used as a tool for political gains. Even MURAD-IV’smother encouraged little princes to engage in such practices to prevent them from getting politically influenced by the powers of haram.
ISLAMIC SPAIN
During the conquest led by Muslims of Spain and Mediterraneanregion in 18th century led to emergence of societies and sub-societies that subsequently led to increase in homosexual practices and strikingly with great level of tolerance. The prevalence and documentation of homosexual practices in medieval Spain is more elaborate than from the rest of the Islamic world. Renowned historian, recorded that, "In early medieval Spain every variety of homosexual relationship was common, from prostitution to idealized love. Erotic verse about homosexual relationships constitutes the bulk of published Hispano-Arabic poetry." The works from Islamic Spain include stories of samisen relationships prevalent in the royal courts.
RELIGIOUS MYSTICISM
A fascinating fact in the Islamic Society is the mention homosexual practices in the works of Sufi saints where, it has been mentioned as “divine love”. Religious teachers also found homosexual practices acceptable. It has been recorded that the religious teachers or teachers of Quran who would not have the resources to marry or hire prostitutes, would search among their pupils.
THE HAMMAMS
The Hammams or public baths were another place where homosexual practices have been recorded. The conditions of public baths were quite similar to that of harems. The righ and elite would satisfy their desire using their money and influence while the poor found the public baths to be a place of satisfying their desire. Ogier Ghiselin de Busbecq,a notable historian and diplomat stated in his visits that Public bathhouses were a common place of homosexuality.
ANALYSIS
Homosexuality was not an alien subject in Pre-Islamic Era. Despite what is generally expected, homosexuality really assumed an indispensable part inPre-Islamic religions. Islamic social and religious rules , modified social life in affected regions. However the penalizing that was to be imposed upon homosexuals became a point of contention in different schools of Islamic Law. Regardless of the standard Islamic position, homosexual practices were as yet prevalent all through the different strata of country. Homosexuality had to be denounced, overlooked, or even acknowledged.
As a rule, Homosexualpractices were firmly denounced by standard Islamists. Although the Qur'an has been contemplated by historians torestrictagainst homosexuality, they can be classified as one of the manycontentions in Islam throughout its history. Indeed, even as the ‘Ulemas’ discussed dissensions related to homosexualpractices, it has never stopped to exist, regardless of it being against the will of God.
HOMOSEXUALS IN POST WORLD WAR II ERA AND ITS IMPACT ON ISLAMIC WORLD
The 2nd world war, which the world saw as a stage of mass destruction of life and property and changing topographical boundaries also proved to be seminal with regard to the social condition of homosexuals. Examples of such instance can be seen in the documentaries like Coming out under fire and the lavender scare, giving insights of life of homosexual men and women of war. The first decade after the war also unearthed stories and anecdotes of such individuals being oppressed, investigated and terminated on the basis of sexuality. The “Don’t ask Don’t tell” policy of the US military, repealed in 2010, was one of many such incentives of the state for the ostracization of homosexuals from the army. At that time, homosexuality was considered as a mental illness by the medical community. This was one condition that disqualified young men and women from service. For the screening of such individuals, they asked every potential member questions on their sexuality. The rights movement for such individuals gained some momentum in the 1960’s. Illinois, state in US, became the first to do away with anti -sodomy laws and effectively decriminalizing homosexuality. Other states weren’t too far to catch up as California aired the first documentary about homosexuality, the Rejected. Authors also started giving homosexuals recognition in their literatures, Dr. john oliven , in his book Sexual Hygiene and pathology ,mentioned the term Homosexuals as the person who was born in the body of incorrect sex, In his book "The Homosexual in America," Donald Webster Cory claimed that gay men and lesbians constituted a valid minority group. Longtime activists Frank Kameny and Barbara Gittings spearheaded the first gay rights marches in Philadelphia and Washington, D.C. in 1965, as the civil rights movement won new legislation against racial discrimination. On June 28, 1969, guests of the popular Stonewall Inn in New York's Greenwich Village fought back against persistent police raids of their local bar, marking a watershed moment in homosexual emancipation. Such movements and events sent a broader message to the world about the changing dynamics of the homosexual individuals, more emphatically the Islamic world.
Discourse of the Islamic world
Several hundred political opponents were executed in Iran in the aftermath of the 1979 Islamic Revolution, with gay intercourse being deemed a capital penalty under Iran's Islamic Penal Code, which was established in 1991. Though the reasons for execution in Iran are difficult to track, there is evidence that many persons were hung for gay activity in 2005-2006 and 2016, usually on spurious rape charges. In other nations, such as Iran and Iraq, the conventional narrative is that homosexuality was spread by Western imperialism. Though homosexuality is not formally criminalized in Egypt, it has been routinely prosecuted under vaguely phrased "morality" laws, and arrests of LGBT people have increased fivefold under the current leadership of Abdel Fattah El-Sisi, presumably in an effort to pander to conservatives. In 2004, a gay rights activist in Uzbekistan was imprisoned and subjected to terrible mistreatment under an anti-sodomy statute enacted during World War II with the purpose of raising the birth rate. In Iraq, where homosexuality is legal, the breakdown of law and order following the Second Gulf War allowed Islamist militias and vigilantes to act on their prejudice against gays, with ISIS gaining notoriety for the heinous acts of anti-LGBT violence committed while it ruled parts of Syria and Iraq. While "Muslims memorialise the early days of Islam when they were oppressed as a minority few," any now forget their history and fail to safeguard "Muslims who are gay, transgender, and lesbian," according to Scott Siraj al-Haqq Kugle. According to Georg Klauda, homosexual sexual intercourse was considered rather commonplace in parts of the Middle East in the 19th and early 20th centuries, owing in part to substantial sex segregation, which made heterosexual relationships outside marriage more difficult. “Countless writers and artists like André Gide, Oscar Wilde, Edward M. Forster, and Jean Genet made pilgrimages in the 19th and 20th centuries from homophobic Europe to Algeria, Morocco, Egypt, and various other Arab countries, where homosexual sex was not only met without any discrimination or subcultural ghettoization whatsoever, but also seemed to be available on every corner," according to Klauda. Homosexuality has never been universally accepted in the Islamic world. "Besides the endogenous changes in the interpretation of scriptures having a deliberalizing influence that came from within Islamic cultures, the rejection of homosexuality in Islam gained momentum through the exogenous effects of European colonialism, that is, the import of Western cultural understandings of homosexuality as a perversion," writes TiloBeckers, referring to the Muslim world in general Professor Thomas Bauer of the University of Münster points out that, despite the fact that there have been numerous orders for stoning for homosexuality, there has never been a single case of it being carried out. "Although contemporary Islamist movements decry homosexuality as a form of Western decadence, current prejudice against it among Muslim publics stems from a blend of traditional Islamic legal theory and popular notions imported from Europe during the colonial era, when Western military and economic superiority made Western notions of sexuality particularly influential in the Muslim world”.
Laws and legislations regarding homosexuals in Islamic countries
Seven nations still have capital punishment for homosexual behavior, according to the International Lesbian and Gay Association (ILGA): Saudi Arabia, Yemen, Iran, Afghanistan, Mauritania, Sudan, and northern Nigeria. In the UAE, it is considered a capital offence. In countries like Algeria, Qatar and Uzbekistan, homosexuality is punishable with time in prison or fine. Homosexual activity in Chad is illegal since 2017 after some amends to their penal code. Talking about Egypt, only gay men are prosecuted under their gender public morality laws. In Iran, the leading Shia country, on the contrary, has allowed homosexuality, but illegal executions of gay people have been carried out by the terrorists. Jordan also stands for the legality of the homosexuals, but still the social attitude towards them is still hostile and hateful. Pakistani law is a blend of British colonial law and Islamic law, both of which make same-sex sexual conduct punishable under the law. Under the pretense of maintaining public morals and order, the Pakistan Penal Code of 1860, which was originally developed under colonial authority, punishes sodomy with a possible prison sentence and contains other provisions that impact the human rights of LGBT Pakistanis. For gay and bisexual males, however, periodic police blackmail, harassment, fines, and jail sentences are more probable. Section 377 of the Bangladeshi Penal Code makes homosexual activities illegal and punishable. Negative sentiments toward LGBT people are common in Bangladesh, owing to the primarily conservative society's traditional worldview. The Bangladesh Parliament declined to repeal Section 377 in 2009 and 2013.Saudi Arabia follows the archaic style of punishment by public execution beheading. Homosexual actions are banned in Malaysia and are punishable by imprisonment, fines, deportation, flogging, or castration. Summing it up, one can construe that the legislations regarding homosexual activity are on the extreme side of the spectrum or their application and execution is.
Case studies
In Saudi Arabia, any same-sex activity is illegal. It means any sexual intercourse between same sex couple is illegal. However, this doesn’t remain the only problem. Any sexual relation between unmarried couples in Saudi is also banned. And there is no recognition of marriage between members of LGBTQ community. Saudi Arabia doesn't have a criminal code of conduct but follows Islamic sharia. The Quran has specific examples of punishing people because of engaging in unnatural carnal acts, between themselves. Because the ancient texts remain antithetical to idea of homosexuality, this practice is criminalized in Saudi also.
The instances of homosexuality are even punishable by death in some instances, flogging in some cases. The law is very clear in prohibiting men from acting like women, wearing clothes and ornaments like them etc. and vice-versa. Iran is a Shia populated country. This condition is more severe in Iran as there is public lashing and even public execution for LGBTQ people caught having sex, even holding hands or in intimate relations. The whole legal system acts arbitrarily by frequent and unanticipated raids on residence of LBGBTQ people, targeting people who identify themselves as gay, lesbians. Also, the trial system is also biased against the members of LGBTQ people. This is evidently supported by several reports of forced confession and lack of access to consular access.
The legal system of Iran is based upon sharia law. The law is derogatory to the bodily autonomy rights of LGBTQ PEOPLE. The members of the community cannot involve in sexual relations as non-heterogeneous sexual activities are punishable by imprisonment or death in some cases. The two countries and there approach is discussed here because Saudi represents the Sunni ideology and has acted as a flag bearer of Muslim voice across the globe. Iran represents an ideology of the Shia community which is opposite to Sunni ideology and Saudi’s stand. However, in the case of homosexuality the stand of both nations is similar and even harsh in Iran.
In recent unfolding events that took place in Afghanistan, the stance of sharia law and its practical implications are overtly manifested. The atrocities that were slapped over the members of LGBTQ community were heinous and against standards of human rights. Many were killed, hanged, subjected to torture. This made it even difficult for the LGBTQ people to achieve their rights of bodily freedom and equal treatment as of other people in the nation. The people of the community are living secret life and are in hiding because the Taliban considers the notion of homosexuality as immoral, against the Islam. This has made their life even worse. Mere recognition of individuals belonging to a community can cost them their lives.
WAY FORWARD
Members of the LBTQ community are also the citizens of the country and deserve the same rights as fellow citizens. The negativity and sense of inferiority that the members of LGBTQ community are treated is an outcome of hatred spread by influential organisations and people. To stop the persecution and seclusion of the community, it is necessary that the negative commentary on the issues relating to them must stop. To start with, the religious commentary that is extreme in its nature and advocates the suppression of the community must stop. Religious commentary that polarises the opinions of the followers against the community and has potential to emulate violence against the members of the community must be moderated.
The religious commentary must be moderate in its opinion, it can be allowed to further the teachings but any preaching that suppresses the rights of members of the same society must stop. Any religious commentary which is strong in its communication and is against the LGBTQ community provokes the members of society against them and this often subjects the LGBTQ people to violence and physical harm. Therefore, the religious commentary must not provoke people against inclusion of LGBTQ in society but it must promote a sense of inclusion in society. The extremist opinion against LGBTQ community must be diluted. Any opinion against them can be allowed to be expressed but this expression should not have the potential to provoke violence and harm to the members. Any opinion so expressed must be rationale and be just and judged for the benefit of the society.
The international community must come forward to create a charter of basic rights for LGBTQ people. This charter shall sketch out basic rights for the members of the community. The charter must be recommendatory in its form and must build from basics, i.e. The charter shall have a robust framework for the transition of society into the form that is harmonious and inclusive. This charter must be based on deep study. The charter can be based on model of Turkey or Lebanon or Niger etc which are Muslim majority countries but still have a desirable degree of tolerance for homosexuality. The model for transition so developed will have practical basis because it developed in nations which had same notion of Islam and sharia. The major change will come when the perception of people changes towards the members of LGBTQ community. The activism movement must appeal to the citizens that LGBTQ people are the citizens of the same state and their rights must not be suppressed on the sole reason of their gender orientation. The more humane side the activism brings in the movement, the more chances of changing the perception of people.
Also, the activism movement must also spread the stories of members of LGBTQ community, who despite their gender orientation, achieved huge success and did something great for society. This will help in breaking the old notions about LGBTQ community. These stories will symbolise the hard work, dedication, perseverance and struggle the members of LGBTQ community did to break societal stereotypes and achieve something great in their life when the whole society was against them. The awareness program so designed must be heavily focussed on grassroots level and interacting people directly. The people must be persuaded to acknowledge the presence of LGBTQ community amongst them and to respect their presence by not treating them as aliens. The feeling of exclusivity arises when the people are against accepting the existence of differences in a society, the aim of awareness programmes must be to help the society to accept the presence of these people around them. Any change that is to be brought in these Islamic countries with old sharia setup will be gradual. The activists will have to respect the process of transition and that the old notions are not shattered immediately but gradually. The process will be smoother when religious leaders recognise that these members are also the subjects of the same god they follow and this thought can be brought in by establishing a liaison between religious beliefs and activist thought.