Tunisia has declared its commitment to halting the forced anal examinations of gay men following years of international pressure. In a Sept. 21 statement to the Agence France-Presse, human rights minister Mehdi Ben Gharbia claimed that the tests, which are intended to “prove” homosexuality, would “no longer be imposed by force, physical or moral, or without the consent of the person concerned.”
Ben Gharbia added that gay men have “every right to refuse” the anal exams.
But human rights advocates tell INTO that the government’s statement is misleading and obscures the real challenges to banning the practice, which is used to criminalize homosexuality in a repressive nation where same-sex activity remains illegal. The reality is that there may be no end in sight for Tunisia’s LGBTQ community.
It’s not easy to have a conversation about gay rights in Tunisia. When INTO interviewed LGBTQ activist Islèm Mejri over Skype, he called from the busy lobby of a hotel. Mejri spoke quietly. Every time someone would walk by he abruptly stopped talking, afraid of what might happen if someone overheard the discussion.
Sodomy is currently punishable under Article 230 of Tunisia’s penal code, a legacy of French colonialism. A conviction could mean up to three years in prison, and unlike other countries where these laws are rarely enforced, police in the majority Muslim nation frequently target anyone suspected of being gay. Seven men were jailed in 2015 after police raided their apartment following complaints from neighbors. While in custody, the police verbally harassed and beat them.
“We’re being hunted,” says Mejri, communications officer for the queer rights group Mawjoudin We Exist. “The government hunts LGBTQ people and puts them in prison to undergo anal examinations. It happens all the time.”
The anal examinations are one of the most controversial aspects of Tunisia’s imperious treatment of homosexuality. Devised in an 1847 text by French physicians, doctors examine the structural integrity of the anus to see if a male accused of same-sex intercourse has recently engaged in sodomy. The methodology, which solely punishes the receptive partner, is severely flawed. There are a number of reasons that a subject could have a loose sphincter, including in cases of conditions like constipation and Parkinson’s disease.
To undergo an anal examination, an individual must lie face down on a hospital bed while doctors hold down both of their arms. A third doctor inserts two gloved fingers into the accused’s anus. Sometimes the physician will insert an object instead.
In Uganda, gay men report that the doctors use machines, which cause considerable bleeding.
The trauma that results from these procedures lasts years, if not for life. Neela Ghoshal, one of the world’s leading experts on forced anal examinations, interviewed 35 survivors of the practice for a 2016 report. One of the stories that has stuck with her most intensely was a Cameroonian man who said that he still had constant nightmares of being forced onto the table and violated. It had been eight years since his test.
“People told us that they experienced the exams as a form of rape,” says Ghoshal, a researcher in Human Rights Watch’s LGBTQ Rights division. “When you think about it, that’s what it is. Someone is penetrating your body against your will. It’s a deeply traumatizing experience.”
Human Rights Watch estimates that there are 10 countries where the use of anal examinations is common, including Kenya, Turkmenistan, and Zambia. Despite being condemned by the United Nations as ineffective, unethical, and torturous, the practice isn’t going away. The first cases of anal exams were documented in Tanzania earlier this year. After 22 gay men were arrested for hoisting a Pride flag at a concert in Cairo this September, police reportedly forced the testing on detainees.
But Ken Mayers, chair of Amnesty International’s North Africa team, told INTO that Tunisia has “strong progressive elements” that offer hope that the country might listen to the concerns of the international community. Six years after the Arab Spring, record numbers of Tunisians are in favor of democratic rule: 86 percent.
In addition, the Mediterranean country’s flourishing tourism industry makes Tunisian officials “sensitive to criticisms that might fall on deaf ears in either Algeria or Libya,” he says.
This promise was reflected in Tunisia’s declaration that it would adopt United Nations recommendations to phase out the use of anal examinations. Every four years member nations undergo what’s known as Universal Periodic Review, in which other states can suggest action steps to improve that nation’s human rights record. Of the 248 recommendations submitted in 2017, Tunisia accepted 189.
One of them was the recommendation on anal testing.
Ben Gharbia said that Tunisian officials are “committed to protecting the sexual minority from any form of stigmatization, discrimination, and violence.”
When INTO asked human rights activists in Tunisia about Ben Gharbia’s statement, it was met with a mixed reaction. Some expressed doubt that the government would be able or willing to follow through with its promise, while others outright accused President Beji Caid Essebsi’s administration of lying.
One of the human rights minister’s harshest critics is LGBTQ activist Mounir Baatour, who called Ben Gharbia a “hypocrite and a liar.”
Baatour, who communicated through the use of a translator, claimed that there’s a fatal flaw in the premise of the minister’s statement: Gay men already have the right under Tunisian law to refuse anal examinations. Many are not aware that they have a choice. Even if detainees do know their entitlements under the country’s civil rights codes, police frequently intimidate, coerce, and beat those accused of sodomy until they comply with the testing.
A particularly chilling report from the Human Rights Watch survey tells the story of Amar, arrested in the picturesque town of Kairouan. A police officer repeatedly punched him outside of the hospital where he was set to undergo the exam, informing Amar that his “consent” was not optional.
“Before the declaration of the minister, the accused could refuse the anal examination,” Baatour says. “There’s no change.”
That’s just the beginning of the issues that Tunisia will face in ensuring that the recommendation to end anal exams is actually implemented into law. Ali Bousselmi, president of Mawjoudin We Exist, says that there is frequent turnover in the unstable democracy. Ministers commonly serve for one or two years before stepping down. President Fouad Mebazaa, appointed after his predecessor was exiled to Saudi Arabia, was in office for just 11 months.
When one administration puts forward a policy, Bousselmi claims that the successive regime “comes in and changes things.” Given that Tunisian authorities have four years to implement the U.N. recommendation, that’s a problem.
“I don’t know if the next government will be against the anal tests or not,” he says.
Ghoshal, who has been lobbying against anal examinations in Tunisia for some time, feels that the Essebsi administration is “pretty earnest” in its intent to end the practice. State officials have told her that Human Rights Watch has a “very strong argument” on the issue and Tunisia would like to move on it.
“I don’t think they’re openly two-faced,” Ghoshal says. “But whether they’re going to do the hard work and put the policy in place is the question.”
What will it take to implement the U.N. policy? Advocates say that it will entail a collaborative effort between police, medical professionals, and judges. Courts will have to stop ordering anal exams, doctors will have to stop conducting them, and law enforcement agencies will have to stop forcing gay men into submitting to the testing. Meaningful reform will also entail checks and balances in this system: If any of these three entities violates the U.N. codes, the other two will have to act as gatekeepers. Whether they will do so is a matter of debate.
Although Lebanon effectively banned anal testing in 2012, Ghoshal claims that these exams are still being conducted. She blames a lack of “coherent and consistent government policy.”
But taking sweeping action to eliminate the anti-gay practices is unfortunately just the start for the North African republic. The use of anal exams is often a pretense for Tunisian courts, Mejri says. Motivated judges have a variety of legal means to target and criminalize gay men, including laws forbidding “public indecency and prostitution.” This has been the case during the homophobic crackdown in Egypt, where sodomy has long been decriminalized.
In fact, gay men are often sentenced to prison in Tunisia even when their tests come back negative. Where there is a will to discriminate, there is always a way.
The overwhelming obstacles preventing reform doesn’t mean that the country’s LGBTQ community lacks hope. Mejri points to the planned establishment of the Tunisia’s first constitutional court system, which is set to be created in a year’s time. The court will ensure that all aspects of the penal code are in line with the constitution adopted in 2014. Activists plan to challenge Article 230 to the new judiciary, arguing that the criminalization of sodomy contravenes those codes.
Mejri remains optimistic.
“Once the court is created and freely working, all articles that criminalize homosexuality will be abolished immediately,” he says. “All eyes are on Tunisia at the moment and on the democratic transition. Article 230 won’t last long.”
Note: Mehdi Ben Gharbia didn’t respond to requests for an interview prior to publication time.