[Editor’s Note: On Article 534 and Sexual rights in Lebanon]
In the name of the Lebanese people
The Magistrate in Metn
Upon careful examination,
It was found that in accordance with a formal charge (Number 34735/2009) filed by the Public Prosecution in Mount Lebanon,
[X], whose mother is [Y], born in the year of [Z],
Was referred to this court on June 25, 2009.
[X] had been remanded on May 9, 2009 and released on bail on May 11, 2009, to stand trial for violation of Article 534 of the Penal Code.
And as a result of the public trial, and after examining the papers of the case and after reading them publicly, the following was revealed:
First: The Facts
On May 11, 2009, a patrol from Metn’s regional office for general security brought in the defendant from the chalet where he was staying at the Golden Beach complex after receiving reports that he was taking part in acts of sodomy and group sex. After listening to his statement, and under direction from the Public Prosecutor’s Office at the Appeal Court in Mount Lebanon, the case was referred to the Office for the Protection of Morality to complete the investigation.
The detained individual declared in his first two statements that he had been born to a Turkish father and a Lebanese mother, and that he had been born with malformed genitalia and with tendencies towards the female gender. [He added that] despite his registration in infancy as a male, he subsequently – specifically in 1994 – underwent a surgical operation in which he was transformed into a woman by removing all of his male sexual organs and implanting an artificial uterus; from that date he was called by the name [x]. He denied categorically that he had engaged in acts of indecency or group sex, as he considered the sexual relations that had engaged in with men throughout his life to be classified within the framework of natural relations between men and women; the duration of those relationships had sometimes exceeded a year and a half.
In the concluding session held on January 9, 2014, defendant [X] appeared before the court. It was clearly apparent to the court that the defendant enjoys, in terms of features and exterior appearance, all the characteristics (muwasafat) of a woman. The latter reiterated his previous depositions before the court, and presented a medical report indicating the defendant’s undergoing a sex reassignment operation, as well as a statement from the mayor (moukhtar) of Bourj Hammoud in which he is referred to by the name [x], in addition to a copy of a document issued by the United Nations High Commissioner for Refugees (UNHCR) reporting that the defendant was recognized as a refugee.
These facts were corroborated through the preliminary investigation, his questioning before the court, copies of the all of the reports of medical doctor Mazen Taha, the testimony of the mayor of Bourj Hammoud, the document from the UNHCR, and all other documents from the case file.
Second: On Law
Whereas the Public Prosecution has charged [ْْْْْX] with violation of Article 534 of the Penal Code, in connection with sexual intercourse contrary to nature,
And whereas it follows that the court must examine the extent to which the factors of this offense apply to him, i.e., to determine whether his actions, which he has confessed to at every stage of the investigation and judicial proceedings, i.e., his engaging in sexual relations with men, would fit into the framework of the legally criminalized sexual intercourse contrary to nature,
And whereas upon returning to the text of this article, it does not appear that the Lebanese legislator clearly define what is meant by the act referred to in Article 534, leaving, therefore, the issue to the discretion of the judiciary on a case-by-case basis, and whereas various Lebanese courts have differed in their interpretation and application of the law based on the acts presented before them, as some courts have criminalized sexual relations between two men, others have criminalized sexual relations between two women, and some have even criminalized sexual relations between a man and a woman when it was established, before the court, that the relations were not undertaken in a manner that would lead to reproduction,
And whereas, returning to the facts presented in the case, and established in the medical report demonstrating that the defendant, who was born with incomplete and malformed male genitalia, had undergone, in the 1990s, a surgical operation that transformed him into a “female in terms of sexual organs”, and as he himself had preferred that in his initial statement, which confirmed that he was born with a significant inclination to become a woman because of the female hormones in his body, and that he had had an artificial womb implanted in a way that he would be able to engage in sexual relations with men in a natural manner, and that he had come to be known by the name [X], and had procured, in this regard, an identification certificate from the mayor (moukhtar) of Bourj Hammoud, and a document from the UNHCR acknowledging his refugee status, referring to him by the name [X], given his unregistered birth to a Turkish father,
And whereas, in light of that, and in light of what the court demonstrated over the course of the session of inquiry regarding the external appearance, disposition, and psychological state of the defendant, all of which overwhelmingly indicate a female character, [in light of all of that] positing that the defendant, known as [X], conducts sexual relations with women after having confirmed the removal of his/her male sexual organs and the implanting of an artificial uterus, would be, in the view of the court, an act “more contrary” to nature than his/her engaging in sexual relations with men, as is apparent from the confessions stated in the case file,
And whereas in this context, it is necessary to mention that persons afflicted with gender identity disorder, as the current defendant is, and for whom most Western states have specified the conditions for these persons to undergo a sex reassignment operation, for which some states will even cover expenses (as in the National Health Service of Britain, NHS), although they deviate from the norm, and depart from what is familiar, they remain the offspring of nature from which they came, and this explains the recent Lebanese judiciary’s issuance of rulings in this vein ordaining that the sex of persons who have undergone this operation be changed in the personal status registry (and [the directive] has in fact been implemented within official records, after the state waived its right to appeal),
And whereas, based on what has been presented above, this court, with its authority to approach and assess, does not view the act of the transexual defendant, known as [ْْْX], and comprised of (mutamaththil) undertaking sexual relations with adult men, constitutes sexual intercourse contrary to nature in accordance with the penal concept within the Lebanese penal code, although the matter may remain in contrast to this concept according to the understanding of monotheistic religions (adyan samawiyya),
And whereas it follows that the conclusion to which the court has arrived in its interpretation of the text of Article 534 of the Penal Code is in accordance with the principle of non-expansion in interpretations of texts of penal law, and is written in accordance with what is sanctioned by the Lebanese Constitution and human rights law in terms of the necessity of guaranteeing equality among all members of society, and of ensuring their personal freedom, especially when those freedoms do not result in harm to others, and with reference, in this context, to the resolution issued by the UN Human Rights Council on June 17, 2011, which laid out clearly, for the first time, measures to counter [rights] violations and discrimination against individuals due to sexual orientation and gender identity, although this mentioned resolution is non-binding for Lebanon,
And whereas, as a result of what has been presented above, it is necessary to nullify investigations (ta‘aqqubat) of the defendant regarding his/her violation of Article 534 of the Penal Code, due to an absence of criminal factors,
Rules – in praesentia and subject to appeal – to discontinue the proceedings in accordance with what has been stated above, to retain expenditures, and dismiss any additional or contrary allegations. Issued and made viewable to the public in Jdeideh el-Metn on January 28, 2014.
Judge Naji Dahdah
Appeals Public Prosecutor in Mount Lebanon, Judge Janah Abeid
Thi is a translation from Arabic
For an analytical examination of this ruling, read Youmna Makhlouf’s commentary
For the original text of ruling in Arabic click on the attachment below