Foreign Relations & International Law

Sexuality- and Gender-Based Crackdowns Under Egyptian Law

Alyssa Bernstein
Thursday, December 28, 2017, 9:00 AM

Homosexuality is not technically illegal in Egypt. But Egyptian authorities are cracking down on the LGBT community, its supporters, and advocates for social liberalization more broadly. In September, the Lebanese band Mashrou’ Leila played a concert to an audience of 30,000 in Cairo, led by openly-gay singer Hamed Sinno.

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Homosexuality is not technically illegal in Egypt. But Egyptian authorities are cracking down on the LGBT community, its supporters, and advocates for social liberalization more broadly. In September, the Lebanese band Mashrou’ Leila played a concert to an audience of 30,000 in Cairo, led by openly-gay singer Hamed Sinno. Fans waved rainbow flags in support of LGBT rights, leading to a media outcry against homosexuality and perceived immorality.

The government immediately arrested over 60 men and women for suspected gay conduct or for waving the flag. Police performed anal examinations on some, a scientifically-debunked procedure to determine whether they had engaged in anal sex. Sarah Hegazy, one of the women arrested, says guards abused her and allowed cellmates to beat her. Sixteen had been convicted by the end of November. The New York Times happened to be filming a documentary report about Esraa, one of the women waving the flag, and she is now on the run from law enforcement. The government simultaneously banned media statements supporting homosexuality. Since August, Egyptian law enforcement has intensified entrapment campaigns against LGBT folks, using fake profiles on dating sites and social media and arresting those who show up for dates.

No law criminalizes homosexual conduct in Egypt. Instead, the government uses Law 10 of 1961 to prosecute suspected gay and trans people. The law forbids prostitution and “debauchery,” and carries up to three years in prison and three years of supervised daily release. The administration has also begun using the same law, colloquially known as Law 10/1961, to silence and punish media commentators and artists.

Law 10/1961’s History and Use in Egypt

Law 10/1961 forbids engaging in, soliciting, or providing facilities for “debauchery and prostitution.” Legislative history demonstrates that parliamentarians added "debauchery" to refer to male sex work specifically. Because the blanket term for debauchery, “fujur” (الفجور), is not defined in the statute, the law is broad enough to allow the police and prosecutors to use it against LGBT-identified Egyptians and their supporters.

From the late 19th through early 20th century, prostitution in Egypt was legal, regulated, and widely patronized by colonial British soldiers. During the 1950s, however, international and local sentiment turned against legalized sex work. Responding to increasingly religious sentiments, parliamentarians originally created Law 10 in 1951 against debauchery and prostitution. Lawmakers updated the law in 1961 to include Syria, then unified with Egypt as the United Arab Republic, so it is now called Law 10/1961. Though 10/1961 responded in part to increasing Islamicization, it was not part of the country’s Islamic law, which only applies to family law. Rather, it was a secular codification of the United Nations’ Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, to which Egypt acceded in 1959.

Law 10/1961 prohibits inciting, soliciting, or maintaining premises for debauchery or prostitution. Article 9, for example, imposes:

Punishment by imprisonment for a period not less than three months and not exceeding three years and a fine not less than 25 LE [Egyptian pounds, approximately $1.40 today] and not exceeding 300 LE in the Egyptian administration and not less than 250 Lira and not exceeding 3000 Lira in the Syrian administration or one of these two punishments applies in the following cases:

(a) Whoever lets or offers in whatever fashion a residence or place run for the purpose of debauchery or prostitution, or for the purpose of housing one or more persons, if they are to his knowledge practicing debauchery or prostitution.

(c) Whoever habitually engages in debauchery or prostitution.

It also permits that:

Upon the apprehension of a person in the last category, it is permitted to send him for a medical examination. If it is discovered that he is carrying an infectious venereal disease, it is permitted to detain him in a therapeutic institute until his cure is completed.

Under President Hosni Mubarak, the Egyptian government began imprisoning men suspected of having sex with men under 10/1961 in the mid-1990s. But there were no large-scale crackdowns until the Queen Boat raid in May 2001, when 52 men were arrested on a Nile party boat. Several dozen men were taken into custody and brutally beaten. The arrests and charges were accompanied by massive media coverage. During two trials over the course of five months, several men were subject to anal examinations, and 21 of the 52 put on trial were sentenced to the maximum sentence, three years in prison and three years of probational observation. Scholars and observers point out that the months-long scandal, the media outrage, and general mania around the raid allowed Mubarak to distract public attention from his government’s economic and democratic deficiencies.

Mubarak’s security services continued to entice and sentence gay and trans people following the Queen Boat raid, often by using police or informants as lures. In 2008, the government arrested more than a dozen men suspected of contracting HIV, and, as 10/1961 permits, forcibly tested them and convicted some of them.

The 2011 protests and Tahrir Square revolution interrupted the government’s suppression of the LGBT community. Despite some protesters’ pro-LGBT message, Mubarak’s forces did not use 10/1961 during the few weeks of protests before his government’s collapse, and the community began to thrive following the revolution.

Perhaps surprisingly, Egyptian President Mohammed Morsi , the Muslim Brotherhood member who was democratically elected, did not enforce 10/1961 heavily —perhaps because he lacked strong control of the state security apparatus. The LGBT community in Egypt became more out and vocal, hosting large parties and generating social media campaigns, as fear of repression decreased.

Why the Crackdown is Coming Now

The LGBT community’s newfound openness was short-lived, however. Gen. Abdel-Fattah el-Sisi, the military officer who deposed Morsi in 2013 and then won elections with 96 percent of the vote, quickly broadened campaigns and arrests. His regime has quadrupled arrests of gay and trans people under various Egyptian laws. On Nov. 4, 2013, the same day that Morsi first appeared in court after being overthrown, riot police raided an LGBT party and arrested ten men, nine of whom were sentenced under 10/1961 and other laws such as those against “insulting public morals.” The following year, 26 men were arrested at a bathhouse but were later acquitted in a surprise verdict. In 2015, more than 100 people were sentenced to time in prison for “debauchery” or “inciting sexual perversion.”

Sisi has a no-holds-barred approach to repressing dissent, imprisoning, disappearing, and publically killing activists from both the Muslim Brotherhood and Egypt’s left. His government has confined over 60,000 political prisoners since August 2013. The U.S. has criticized Egypt’s state policies in its 2016 Human Rights Report, and has withheld some military aid to Egypt over its rights abuses, even as President Donald Trump praises Sisi. New anti-civil liberties laws, such as limitations on NGO activity, restrict both Islamist and human rights organizing.

However, it appears that suppression of the LGBT community comes from a different motivation than silencing dissent: Sisi is demonstrating to the Egyptian populace that though he deposed an Islamist president, his government still upholds conservative religious values. Egypt’s morality police widely publicize their raids on the LGBT community, sometimes notifying the press beforehand. The arrests get positive press coverage for the security forces, who otherwise have a poor reputation. In the words of one young Egyptian named Amr, the president is trying to prove that “though the Islamists are out of power, the new regime is not letting go of public morals, it is not less Islamic.”

Presidential elections are planned for early spring 2018, and while Sisi faces a number of potential competitors, it is likely he will win by a landslide, despite not being able to boost the continually-struggling economy. But Sisi must still campaign for a respectable margin of victory, and preserve his government’s acceptability. Protecting conservative social values is one means to boost his government’s legitimacy, and even when he nods to liberalizing tactics such as more women leaders, he jokes “I do not want any man getting me wrong here, particularly since the elections are approaching.”

Members of the Egyptian Parliament are vocally supportive of the government’s repression of the LGBT community, and some hope to see it increase. They have floated two new bills, one that will strengthen the existing debauchery and prostitution law by lengthening sentences and including messages on electronic media, and another that will outlaw homosexuality and increase sentences to five years. International human rights groups have condemned the bills.

10/1961 Enforcement Against Media Figures

Aided by active citizens, the government is also using Law 10/1961 against media personalities and authors who speak out about social liberalization. The law allows individuals to refer cases to the state prosecutor if they feel they have been harmed by obscenity, similar to the procedure that allows American citizens to file a Federal Communications Commission obscenity complaint in the U.S. The complaint procedure stems from an inherited French legal procedure, but also responds to pressures implemented by conservative Muslim activists who have pressed the Egyptian government to embrace traditional Islamic social morality enforcement mechanisms.

Following a private citizen’s petition, television presenter Doaa Salah was sentenced to three years in prison for suggesting on network television that single women should be allowed to have children. The state prosecuted her for a monologue on where she appeared to be pregnant and spoke in support of unwed mothers, going so far as to suggest that they hire men to serve as sperm donors. Her sentence is being appealed and may be overturned. Law 10/1961 and other obscenity laws are also being used to clamp down on pop stars’ racy Instagram posts and music videos, and on authors like Ahmad Naji, imprisoned for “violating public morality.” Khaled Ali, a left-wing human rights lawyer, has announced a competing presidential campaign against Sisi despite a three-month sentence for public indecency and a raid on his office to seize election materials. Enforcement against public speech and obscenity has veered into the absurd: Singer Sherine Abdel Wahab has been indicted for making a joke about parasites in the Nile, and toy sellers were arrested for selling retro toys that children have recently re-dubbed “Sisi’s balls.”

Egypt is, of course, not the only country with extensive anti-gay and anti-free speech prosecutions. The United Nations recently condemned crackdowns in Indonesia and Azerbaijan, as well as in Egypt. Even in Lebanon, perhaps the most gay-friendly Arab country, the police target the LGBT community. In Iran, Saudi Arabia, and Yemen, homosexual acts are punishable by death. Meanwhile, Egypt’s laws against debauchery are similar to many across the Middle East and other post-colonial countries. However, as Egypt attempts to tout its diplomatic record and improve its reputation in the international arena, it is important to note that Sisi is repressing a large range of forms of dissent.

Alyssa Bernstein is a second year JD student at Harvard Law School and a PhD candidate at the Queen's University of Belfast School of Law. She has worked in Israel and Palestine. As part of her bachelor's degree from Yale University, she studied at the American University of Cairo and in Amman, Jordan.

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