Lebanese Article 534 Struck Down: Homosexuality No Longer “Contrary to Nature”

2016-07-11    |   

Lebanese Article 534 Struck Down: Homosexuality No Longer “Contrary to Nature”

On May 5, 2016, Hisham Qantar, a magistrate in el-Metn, issued a ruling that halted the investigation of an individual prosecuted under Article 534 of the Lebanese Penal Code. This article is typically used to criminalize same-sex relationships.[1] The ruling includes a detailed analysis of Article 534, and reaches the conclusion that the expression “intercourse contrary to nature” contained in the article, is not applicable to a sexual relationship between two individuals of the same sex. The ruling complements two prior rulings that interpreted Article 534 in the same manner: the first was issued on December 2, 2009 by Mounir Sleiman, a magistrate in Batroun; and, the second on January 28, 2014 by Naji al-Dahdah, a magistrate in el-Metn.[2]

This article is a comparative analysis of these three legal interpretations that highlights three  common characteristics of the rulings, in addition to a new approach to Article 534’s interpretation put forward by the recent Qantar ruling.

Judges Insist Upon Their Interpretive Authority

All three judges appeared to insist upon their authority to interpret the text [of the Penal Code]. In the ruling issued by the Batroun court (Sleiman), the two accused youths were arrested while in a parked car by the side of the road. The record indicated “a report of kissing and caressing, without the occurrence of a sexual act”. The second ruling from el-Metn (al-Dahdah) concerned a transgender woman who admitted to having sex with men, and was prosecuted on the basis of Article 534. In the most recent case (Qantar), a Syrian national was arrested; he had been standing by the roadside wearing clothing described as “feminine”. In the text of the ruling, it was reported that he had been “wearing women’s clothing, given his feminine leanings since childhood”, and that he “had been having sex with men in Syria”.

I relate these facts to point to the common denominator among these cases: namely, they did not include carnal knowledge in the legal sense. Consequently, all three judges were able to acquit the defendants on the grounds that no material elements of a crime had actually been presented; they did not need to go so far as to interpret Article 534. Nevertheless, all three rulings indicate a clear intention, on the part of the judges, to go beyond the facts of the case to put forward a different legal interpretation of Article 534. In doing so, they appeared to insist on their authority when it came to interpreting the text, and to affirm that doing so fell under their jurisdiction. This was explicitly mentioned in the third ruling, where in fact, it appears as though the judge took advantage of the existence of these cases in order to exercise his interpretive authority. In other words, it appears that he had been waiting for a legal case such as this one in order to issue this interpretation.

Strengthening this hypothesis, perhaps, is the fact that the interpretation [of the Penal Code] came at the judge’s initiative; it was not, for example, suggested by a lawyer, and it should be noted that both rulings in el-Metn were issued in the absence of a defense lawyer for the accused. The insistence upon providing an interpretation of Article 534, despite the existence of “alternate” means to exonerate the defendant, represents an important entry point towards enshrining the judiciary’s role in interpreting the text of the law, and the development of particular methods of doing so, as will be detailed in what follows.

Interpreting Article 534: How Do We Understand “Nature”?

“Human relationships are not necessarily connected to the rules of religion or society.”

The rulings issued in Batroun (Sleiman) and el-Metn (Qantar) went to the extent of providing a detailed interpretation of the concept of “nature”, which appears in Article 534. The most significant point in Qantar’s ruling lies in his presenting a legal, social, and biological interpretation of homosexuality, an approach that differs from Sleiman’s interpretation of the concept.

The ruling issued by the Batroun court (Sleiman) did elaborate an analysis of “nature”, stemming from an ontological interpretation. The ruling went on to say that humanity “has not yet been able to understand the laws of nature in all their aspects, and even today, it seeks to discover nature and its very character”. Humanity is a part of nature and one of its elements, and so it follows that “it is not possible to say that any human practice or behavior is contrary to nature”. Thus, the ruling arrived at the following conclusion: because it is impossible to define the nature of humanity, it is therefore impossible to define any behavior as contrary to nature.

There is no doubt that this interpretation is of crucial importance when it comes to limiting the application of Article 534 to numerous sexual relationships, including same-sex relationships and relationships that do not produce offspring. However, the belief that it is impossible to define any human behavior as contrary to nature effectively results in emptying Article 534 of its content. And this, in turn, creates a margin for criticism on the basis that the ruling conflicts with the principle of the effectiveness of the legal text.

By contrast, the ruling issued by Qantar adopts a different approach to interpreting Article 534. Rather than move in the direction of the previous interpretation and declare “nature” impossible to define, Qantar chose to elaborate its definition and interpretation. In place of an ontological interpretation of the text, he provided a social, biological, and legal interpretation. He did not reject the concept of nature as a whole, but instead reinterpreted it primarily on the basis of general legal principles, including the Universal Declaration of Human Rights, Resolution 17 of the Human Rights Council issued in 2011, and the general leanings and principles enshrined in the United Nations system.

Secondly, the ruling interprets “nature” with a view to biological concepts, citing the 10th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD-10) issued by the World Health Organization, which states that homosexuality is not a disease. Finally, the judge arrived at an interpretation of the text in light of prevailing social concepts and their development, suggesting that the concept of “nature” might “include multiple meanings, according to which lens is used to interpret it, particularly when it comes to human relationships – which are constantly changing, subject to the development of concepts, customs, and beliefs, and are not necessarily connected to religious or social principles”. He connected homosexuality with the practice of individual freedom, a point that had not been raised in any of the previous rulings.

There is no doubt that this interpretation is immensely important methodologically: it detaches the legal text from its prevailing meaning and reinterprets it, but without declaring (explicitly, at least) that the law is devoid of meaning. This approach recalls the sociological methodology of a particular school of [legal] interpretation known as “free scientific research”, founded by François Gény. Adopting this approach to interpret the law could be an important step towards achieving equity for numerous marginalized social categories. Moreover, the issuance of scientific interpretations alongside legal ones is considered crucial to the “rationalization” of discourse. Anyone who debates or opposes the ruling must adopt its language, and it leaves no space for value-based or moralist discourse.

Fortification Before Interpretation: A Strategy for “Manufacturing”Judicial Opinion?

Rulings shed light on how public prosecutors use Article 534

Because the acts mentioned in these three cases do not constitute intercourse in the full sense, the judges were able to mount legal and technical arguments to acquit the defendants before they embarked on interpreting or commenting on Article 534 itself. For example, the first ruling (Sleiman) stated that “the facts presented before the court did not mention any act of [sexual] contact, therefore they do not include sexual intercourse”. Similarly, Qantar began his ruling by pointing out that “in the case file, it was not established that the defendant had set out to establish a sexual relationship with any person (male or female)”.

Some may consider this as granting legitimacy to Article 534, as it does draw upon the literal contents of the article in order to acquit the defendant. However, it actually presents a strategy that can be used in analogous circumstances. Preemptively defending the ruling in a legal sense weakens the possibility that it might be overturned by a higher court in the event of an appeal. Furthermore, the acquittal of the defendant on technical grounds gives the ruling a certain force and legitimacy.

To that end, the facts of the cases constitute an ideal opportunity for a judge to put forward a similar interpretation and deconstruction of Article 534. Starting with cases that are less challenging and less vulnerable to be overturned, this represents a key strategy of accumulating judicial interpretations, on the one hand, and presenting an issue for public discussion, on the other. On the societal level, these kinds of cases represent an important start to raising awareness of the rights of gays and lesbians and illustrating the legal prejudices they face. These rulings shed light on how public prosecutors use Article 534 to prosecute individuals who are doing nothing more than “wearing women’s clothing”. That the rulings are based on a specific legal and scientific defense will lead to the “rationalization” of these and similar charges in the language of the law (which society considers the language of reason). Moreover, it contributes both to communicating a message to society, as well as averting the shock of public opinion and the emergence of extreme reactions that similar rulings might face (i.e., judicial backlash).

In conclusion, it has become evident that the status of Article 534 has changed. These three rulings are leading the way on the march towards striking down the article. They have placed the judiciary ahead of parliament on that road. The more rulings in that respect, the merrier.

This article is an edited translation from Arabic.


[1] The full text of the ruling can be viewed on the website of The Legal Agenda:

[2] See: Youmna Makhlouf’s, “Redefining “Sexual Intercourse Contrary to Nature”: A Legal Step in the Right Direction”, The Legal Agenda, March 10, 2014.

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