A draft law that may be introduced in the Japanese parliament this month would prohibit doctors from providing fertility treatment to any woman who is not married to a man. The tentatively titled Bill on Specified Assisted Reproductive Technology, seen by Human Rights Watch, would outlaw artificial insemination and in vitro fertilization (IVF) for single women and lesbian couples. If passed, the law would legalize discrimination against single and lesbian women who wish to have a child.
Same-sex couples are not allowed to marry in Japan. In November, a Tokyo court upheld the country’s ban on same-sex marriage, citing the constitution’s definition of marriage as one between “both sexes.” In June, an Osaka court found the ban constitutional for the same reason. These rulings contrast with a March 2021 judgment in which a Sapporo court found the ban unconstitutional, describing it as “discriminatory treatment without a rational basis.” Despite the divergent decisions, the latest Tokyo ruling stated that Japan’s lack of legal protections for same-sex families violated their human rights and the Japanese constitution.
Until now, access to fertility services has not been explicitly banned for queer or single women.
Human rights activists Mamiko Moda and Satoko Nagamura had their son using donated sperm. In an interview with Human Rights Watch, Nagamura said:
“If this law had existed two years ago, we would not have our little boy. We want all women to be able to access their right to health care. Banning some of us won’t stop people from wanting a baby, it will just push it farther underground and make the process of acquiring sperm far more dangerous. This is not just an LGBT issue. It is a women’s health and safety issue.”
Japanese lawmakers should amend the bill to ensure equal access to fertility treatment for all women, regardless of their marital status, sexual orientation, gender identity, or gender expression. They should introduce anti-discrimination legislation prohibiting future health policies that prevent single women and lesbian, bisexual, and queer (LBQ+) couples from accessing reproductive treatments, and provide public information on paths to parenthood for queer and single women, including information on adoption and reproductive services. Finally, they should pass an LGBT-inclusive parental recognition bill that explicitly recognizes the legal parenthood of non-gestational lesbian parents.
The British government has committed to a 10-year strategy to end discrimination against “female same-sex couples” seeking fertility services.
The first ever Women’s Health Strategy For England, published by the UK’s Department of Health and Social Care, includes language supporting reproductive rights for lesbian, bisexual and queer (LBQ+) women. It commits the government’s health department to improving transparency and removing discriminatory policies to ensure “female same-sex couples are able to access [National Health Service] NHS-funded fertility services in a more equitable way.”
In October, 2021, campaigners Megan and Whitney Bacon-Evanslaunched a legal case against their local NHS board, stating that its fertility policy discriminated against lesbians. In their postcode, same-sex female couples seeking one cycle of NHS-funded in vitro fertilization (IVF) are required to prove infertility by self-funding 12 rounds of artificial insemination, including 6 in a clinical setting, costing approximately £26,000. For heterosexual couples, the requirement to prove infertility is attestation of two years of unprotected sex.
The new strategy removes the requirement for self-funding, and states that female same-sex couples can expect NHS coverage to start with 6 cycles of artificial insemination.
Still, there is little clarity as to when the strategy will take effect. “Some queer couples told us this week they have already been put on fertility waiting lists for 2023, others were told they still don’t qualify,” Bacon-Evans told Human Rights Watch.
Also, the strategy is silent on “single women who want to start a family,” an issue highlighted by experts who submitted to the strategy process, which could potentially discriminate against both heterosexual and queer single women. As the strategy commits the department to administer care for women regardless of non-clinical factors, such as relationship status, single women should be covered.
The strategy also does not define “same-sex” or “couple.” It remains unclear if partners must be married or in a civil partnership, and if treatment will be available to LBQ+ couples in which one or both partners are transgender, non-binary, or gender non-conforming.
Authorities should extend non-discriminatory access to fertility treatment to single women and all LBQ+ couples, regardless of gender identity or expression. They should also be protected from non-clinical barriers to fertility services. One immediate opportunity comes as the National Institute for Health and Care Excellence updates its fertility assessment and treatment guidelines.
Abdelbraki Mezin asked me over coffee last week if homophobia was dead in the United States.
“I mean, you’ve had marriage equality for almost a year, surely that’s enough time,” the Tunisian human rights defender said. His partner, Bouhdid Belhedi, laughed, adding, “Yes, much like winning the Nobel Peace Prize solved all of Tunisia’s human rights issues.”
Mezin and Belhedi are LGBT rights defenders in Tunisia. As members of Tunisia’s first organization working openly for LGBT rights, they have suffered attacks, death threats, and lost family relationships.
Criminalizing Sexuality
Homosexuality is illegal in Tunisia, punishable by up to three years in prison under Article 230 of the penal code. Introduced by the French during colonial rule, Article 230 criminalizes “sodomy” in the original French text, and “homosexual acts” in Arabic. It’s a wider net that applies to men and women.
In 2010, protests in Tunisia marked the start of revolutions across the Middle East and North Africa, and the country’s new democracy has been dubbed the “Arab Spring’s sole success story.” Its civil society is so revered that the country’s National Dialogue Quartet won the 2015 Nobel Peace Prize for their contribution to building a “pluralistic” democracy post-revolution.
Tunisia also made headlines in 2015 when authorities legally registered Shams, the country’s first organization openly working for LGBT rights. Yet, despite the seemingly positive step, the government did nothing to amend the criminalization of homosexuality in the penal code. This means that human rights defenders (HRDs) promoting sexual rights and protecting LGBT survivors of attack, discrimination, and rape are working for the rights of people who — according to the law — have committed a crime.
Mariam Manai, a Tunisian LGBT rights defender, met with me during a break in the packed program of Chouftouhonna, a feminist art festival put on by Chouf Minorities in Tunis. Manai said that repealing Article 230 is “not just the most important step for protecting the community, but a critical step for HRDs.”
“If homosexuality is a crime, there’s no legal framework for the rights we defend,” she said. “If someone is attacked, we can’t report it. If someone needs medical care, they’re too scared to go to the hospital because they might be arrested. We are defending people who, according to the government, deserve no defense.”
Normalizing Attacks
HRDs in Tunisia say that Article 230 makes seeking justice for survivors of assault nearly impossible, and that police are often complicit in crimes against LGBT people. Mezin said that because homosexuality is a crime, survivors are treated as criminals and subjected to violent physical examinations to prove their “guilt.”
“The police are performing anal exams on male victims of homophobic attacks,” he said. “In front of other police officers, someone claiming to be a doctor puts on a glove and ‘proves’ the victim is guilty of sodomy. The police then ask for a confession and usually put the man in jail. Some victims have confidentially reported to us that in order to ensure he ‘failed’ the anal exam, police raped him in the van after his arrest and before the exam. This is torture, and a violation of international human rights and our own constitution. But because Article 230 exists, the police act with impunity against LGBT victims.”
HRDs are quick to point out that the penal code — and the police violence it seems to allow — is only one element of the problem. Belhedi said that local religious leaders are also contributing to a climate in which “normal Tunisians think homophobic violence is acceptable, and even deserved.”
Two weeks ago, three men attacked Belhedi on a busy street at nine in the morning.
“When the men insulted me and grabbed me, people just watched. When they started to beat me, people just watched. When the beating got brutal enough someone stepped in and the men ran away. Violence against LGBT people has been normalized, even called for, in our laws and in our mosques.”
He told ThinkProgress that in his home region of Hammamet, imams leading local prayers have called on followers to attack Tunisians “who act gay.” At least two mentioned Belhedi by name. He said that last year “Islamic extremists” came to his house and threatened his mother, telling her that her son’s LGBT advocacy was “against Islam.”
Yet, despite the strong social prejudices that put Bouhdid and other LGBT defenders at risk, he remains adamant that a legal change — repealing Article 230 — is the critical first step towards protection.
“We have proof in Tunisia that if you change a law, society changes with it — even if it contradicts Islamic tradition,” he said. “When polygamy, which is permissible in Islam, was criminalized, people said it was haram [forbidden] to contradict the Prophet. When [former President Habib] Bourguiba made adoption legal, which is haram in Islam, of course people fought it. But the law affects how people think about social issues. Today, adoption is socially acceptable, and polygamy is barely talked about.”
Woman spray paints a column during the Chouftohounna Feminist Art Festival in Tunis, 15 May 2016.
CREDIT: Erin Kilbride
Raising Tunisian Consciousness
“Individual protection — keeping our community alive — is the most effective thing we can do today,” said Manai, whose organization Without Restrictions helps survivors access legal assistance, medical care, and housing following a violent attack or family dispute. “But in the long run we need education. That’s the only way the attacks will end. We have such a problem with — a fear of — sexuality in Tunisian society. If you use words like gender, binary, or queer, people stare blankly. Even in LGBT spaces, people confuse trans, cross-dressing, and queer identities. Outside of those spaces, sexuality as a concept, as an identity, is missing from most Tunisians’ consciousness.”
Senda ben Jebara, an HRD working with the human rights group Mawjoudin (“We Exist”), believes sexual and gender education — “slowly, and using our own language” — is the only way to end homophobia. “How can we expect people to understand homosexuality if they don’t understand heterosexuality as a sexuality? If the very word terrifies them?”
Artists and HRDs at Fanni Raghman Anni (“Artist Without Choice”) are similarly working to raise consciousness. FRA is a human rights organisation born out of Tunisia’s 2011 revolution that uses performance art to push discussions about individual, cultural, and sexual rights into public spaces.
Asma Kaouch and Seif Eddine Jlassi, two of the group’s leaders, told ThinkProgress that their performances are a strategy to defend human rights. They introduce gender, sexuality, and personal freedoms as concepts, without explicitly using words that will turn away some parts of Tunisian society.
“We stage events where normal people will see them — not tucked away in an elite theatre,” said Kaouch. “We want to draw people from the street and the grocery store. Our performances are about the relationship between an individual, a body, and society — concepts that most Tunisians don’t have the opportunity to think about critically. We don’t want to entertain, we want to shock.”
Fanni Rahman Anni is linking up youth in remote, conservative areas who want to perform. They have also built art centres in poor villages, said Kaouch, “where we know Islamic extremists are very active. We provide an alternative, and we introduce concepts that lay the groundwork for human rights.”
What’s Next?
Their strategies are as varied as their own identities, but Tunisian LGBT rights defenders are in near universal agreement about at least two things: that “solving” the country’s violent homophobia requires abolishing Article 230 and that providing public education in gender, sexuality, and human rights.
Many are also clear on the international community’s role in this struggle. They say Tunisia’s allies need to take a stronger line on the penal code article that criminalizes LGBT rights defenders and the communities they protect.
“Visiting diplomats and representatives need to be called on to bring up Article 230 at every opportunity. The decriminalization of homosexuality should be linked to trade and foreign investment,” said Belhedi. Others add that international employers must ensure Tunisian workers have the same rights as their international colleagues and can’t be prosecuted for their sexuality.
In the meantime, the work of deconstructing oppressive notions about gender and sexual rights — the work that will end and not just outlaw homophobic attacks – will be done by the Tunisian defenders themselves.
“Before the revolution, none of this was possible, there was no room for expression,” said Kaouch. “Now, Tunisian civil society is one of the most powerful in the world. The influence we have is real. And we have to take advantage of the space we fought to create.”
