LGBT rights in Afghanistan

LGBT rights in Afghanistan
Afghanistan
Status	Illegal (see below)
Penalty	Maximum penalty of death (see below)

Gay, lesbian, bisexual, and transgender (LGBT) people living in Afghanistan face certain unique legal and social challenges. Homosexuality and cross-dressing are considered serious crimes in Afghanistan, possible punishment may include the death penalty.^[1] This is usually the case in rural parts of the country where local villagers take the law into their own hands. As of 2008, it appears that the regime change has not had much impact on the legal status of gay men, lesbians, and bisexuals in Afghanistan.

Homosexuality and cross-dressing are widely seen as taboo and indecent activities, owing to traditional Islamic mores concerning appropriate gender roles and sexual conduct. Most Afghan citizens are Muslim and these attitudes are also reflected in the nation's Constitution and enacted laws.

When publicly discussed, homosexuality is often linked with prostitution and pedophilia and the level of awareness about sexual orientation or gender identity is limited. In 2011, Afghan news reporters interviewed men who had LGBT-pride symbols on their vehicles, to find out that the men were unaware of the meaning of the rainbow flags and stickers, thinking that it was just another western fad, and began quickly removing the rainbows to avoid being seen as LGBT or a supporter of LGBT rights.^[2]

When the Taliban gained control of the country in the 1990s they criminalized all sexual relationships outside of the heterosexual marriage, and would often publicly execute men and women for committing fornication and adultery and for engaging in sodomy.

In 1994, the Taliban supreme leader, Mullah Omar, saved a boy from being sodomized by two feuding generals in Kandahar and when he was subsequently given control of the city he decreed that violent and mutually consensual sodomy would be capital crimes.^[3]

Despite the negative social attitudes and legal prohibitions, there is an institutionalized form of bisexuality within Afghan culture. This occurs when boys are kidnapped to act as sexual slaves for adult men, typically in a militia, or when an adult man buys sexual favors from young boys with money or gifts. These activities are tolerated within Afghan culture because they are not perceived as being an expression of a LGBT-identity, but rather an expression of male power and dominance; as the boy in these situations is forced to assume the "female" role in the relationship.

Militia members generally do not have access to women, and so boys are sometimes kidnapped to be humiliated and raped by adult men.^[4] Other boys become prostitutes for adult men, regardless of their sexual orientation.

These men involved are sometimes called bacha baz in Persian and seem to flourish in the big cities of Afghanistan, possibly due to poverty and the strict social taboos surrounding interaction between men and women. A law has been enacted prohibiting Afghan soldiers from having their "ashna" live with them.^[5]

In 2007, reports stated that the practice of "bacha bareesh" (beardless boys) is still prevalent in parts of northern Afghanistan. This practice involves teenage boys being dressed in women's clothing and made to participate in dance competitions and engage in sexual acts.^[6]

Homosexuality is thus often associated with both sexual abuse and prostitution, a popular misconception that trickles down into the nation's legal system.

The Penal Code of 1976 was reinstated after the American invasion, and it has several provisions that could apply LGBT people.

• Article 398 – Offers lesser punishment for vigilante honor killings, which may involve a family member discovering their spouse or kin engaging in adultery, fornication or homosexuality.

• Article 427 – Prescribes long prison terms for adultery and pederasty, the latter may be interpreted as including sodomy, in light of the fact that there are still legal punishments proscribed even if the people involved are legal adults. The maximum punishment increases if victim is under eighteen years of age, if the defendant is in a position of authority over the victim, if the defendant has repeatedly committed the crime or if the crime results in the spread of a disease. The law also increases the available punishment if a "violation of honor" takes place.

• Article 512 states that a person who is engaging in public "watching" in a repugnant manner shall be imprisoned or fined.

The Constitution stipulates that Afghanistan is an Islamic republic, so it is possible for LGBT people in Afghanistan to be charged with violating Shariah law. This could happen in lieu of, or in additional to charges being brought under the penal code. Shariah law based punishment is more likely to occur in isolated, rural communities where private citizens and vigilant groups seek to punish anyone who does not follow strict Islamic mores.

In the cities, persons convicted of homosexuality are generally sentenced to prison. In 2004, an American advisor to the Afghanistan government was arrested and sentenced to a prison sentence for homosexual activities with an Afghan man. Other news reports have also noted that other men have been imprisoned for such engaging in same-sex sexual behavior.^[7]

The Afghanistan Law of Marriages (1971) stipulates that a legal marriage must be two Muslim adults of the opposite sex, and that it must meet the rules of Islamic law. While the law does not explicitly address the issue of same-sex couples, Article 41 of the Marriage Law stipulates that where the law is silent on a particular issue, it shall be decided based on the principles of Islamic law. Hence, Afghanistan family law does not recognize same-sex marriages, civil unions or domestic partnerships. Likewise The Afghanistan Law on Marriages Weddings and Circumcision (1949) speaks of marriage as something between a Muslim man and woman and states that marriages must follow Islamic law.

Article 430 states that it shall be treated as "Instigation of Delinquency" if an adult promotes or assists in the act of minors (under 18) being involved in the act of adultery, homosexuality or prostitution.

In 2007, the Sydney Morning Herald reported that a Pashtun tribesman fell in love with and 'married' a 16 year old boy – both of whom subsequently faced summary execution in Pakistan after his "unholy union" provoked outrage among Islamic leaders. Local reports said the boy's family, who are extremely poor, agreed to the union after Liaquat, an Afghan refugee, paid a dowry of 40,000 Pakistani rupees ($885) – a huge sum. However, as news of the scandal leaked out, Afridi tribal elders convened an emergency jirga (tribal council) on Wednesday to decide how to respond to the "immoral and shameful act".^[8]

Prior to 2003, little or no HIV-AIDS education or treatment existed. As of 2008, the official number of people living with HIV-AIDS is 504, although the actual number is suspected of being higher, possibly in the thousands.^[9] The deeply traditional social mores make it difficult to introduce comprehensive public health education initiatives.

Thus far, the bulk of the available resources have focused on fighting drug addiction and, to a lesser extent, the commercial sex industry.^[10] Yet, what little is reportedly being said about sexuality is in the promotion of abstinence-only sex education programs.^[10]

In 2009, the first HIV-AIDS treatment center opened up in Kabul, with more clinics promised to open soon.^[11] Access to anti-retroviral drugs is, at best, limited and preventive initiatives often conflict with deep-rooted taboos.^[12] Efforts are being made to educate local and religious leaders in the hopes that they can legitimize greater public education.^[12]

Legally, Article 373 of the Afghanistan criminal code stipulates that a person that spreads a "dangerous disease" by accident shall be fined, but if the disease results in death or permanent disability the punishment shall be the same as if it were an accidental murder.

As of 2009, no law exists in Afghanistan to address discrimination or harassment on the basis of sexual orientation or gender identity. In response to foreign inquiries, the Afghan Social Democratic Party stated that it "favored an international effort to fight the AIDS-HIV pandemic, but that homosexuality and same-sex marriages are opposed by all great religions." No political party or interest group has expressed support for LGBT rights.

Afghanistan law currently prohibit a political party, interest group or social club from advocating anything that is in opposition to Islamic morality. Absent a change in the law, it is unlikely that a political or social organization advocating LGBT rights will be permitted to exist and promote its viewpoints.

Article 32 of the Afghanistan Press Law Edict (2002) prohibits publications from promoting "incitement to depravity." Likewise Article 27(D) of the Afghanistan Postal Law (1973) prohibits the usage of the postal service to exchange material that is "repugnant to public decency and morals." These two provisions could be used to censor the distribution of materials advocating gay rights or talking about homosexuality in general.

• Gender roles in Afghanistan
• LGBT rights in Asia
• Hamid Zaher - Afghan writer and gay activist

• Afghanistan Media Law
• Afghanistan Law and Constitution
• Foster, Stephen Wayne. Afghanistan. Encyclopedia of Homosexuality. Dynes, Wayne R. (ed.), Garland Publishing, 1990. pp. 17–19.

• Homoeroticism Among Kabul's Warriors
• Gay Afghanistan, After the Taliban. Homosexuality as Tradition
• Afghanistan's Dirty Little Secret: Boy Lovers by The San Francisco Chronicle