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On the one hand, the fact that a judge in Lebanon ruled in January that criminalization of gay sex in that country must cease is a very good thing.

On the other hand, the way that happened…the case that won that ruling…and the aftermath are off-putting.

Although the case was decided at the end of  January the result was not made public until it was released in the arabic legal magazine Legal Agenda last week.

Judge Naji El Dahdah of Jdeide Court in Beirut dismissed a case on January 28 in which the country of Lebanon accused a self-described transgender woman of having a same-sex relationship with a man.  From a transgender perspective, these two individuals were having a heterosexual relationship.  

The defendant, whom the report does not name, was born with deformed or incomplete genitalia, but was described as male on her personal status registry.  However, she said she always felt she was a woman, and underwent surgery in the 1990s to remove her male genitals and create a vagina.

--Venetia Rainey, The Daily Star

So here we discover that the transgender woman was, in fact, intersex.

And the gay news media was all about the legalization of gay sex…even though the ruling was about penis/vagina sex.

Can you say "erasure"?

The case is thought to be the first ever involving a transsexual woman.  Judge El Dahadah initially referred to the defendant as a male before later switching to "he/she."  

In his final ruling, Dahdah said that a person’s gender should not simply be based on their personal status registry document, but also on their outward physical appearance and self-perception.
The judge's ruling relied on a December 2009 decision by Judge Mounir Suleiman that consensual relations were not "against nature" and hence that Article 534 of Lebanon's penal code (which prohibit's sexual relations that are "contradicting the laws of nature" and makes them punishable by up to a year in prison).
Man is part of nature and is one of its elements, so it cannot be said that any one of his practices or any one of his behaviors goes against nature, even if it is criminal behavior, because it is nature's ruling.

--Judge Suleiman

Last year the Lebanese Psychiatric Society ruled that homosexuality is not a mental disorder and hence does not need to be treated.  The society continued by saying that conversion therapy has no scientific backing and therefore health professionals should avoid it.
The assumption that homosexuality is a result of disturbances in the family dynamic or unbalanced psychological development is based on wrong information.

--LPS

We are moving towards making article 534 completely irrelevant, this decision followed the achievements listed above and others in Lebanon that have been pushing for more judges to use this reasoning.

This has been our strategy since the current political situation in Lebanon does not allow any change in the penal code.

Although the concept of legal precedent does not apply in Lebanon, hopefully this ruling will encourage more judges to make the right choice.

Trans people in Lebanon need a court order to change their sex legally based on a report of three psychologists and a psychiatrist.

The process is long and arduous deterring many and therefore their name and gender remains unchanged in their legal documentation.

Currently Helem and Marsa, a Sexual Health Center in Lebanon, offer legal, medical and psychological assistance to transgender people.

--Georges Azzi, Helem cofounder

The Lebanese public is still hesitant to accept LGBT people.  A 2013 Pew Research poll found that 80% of the public believe that homosexuality should not be accepted by the society, as opposed to 18% which believe it should be.
Hopefully it can be replicated in other Arab states which have similar legislation, but it is up to the judges to work with previous rulings and documentation.

--Azzi

El Dahdah is not someone that we know is particularly involved in these issues.  He’s not part of the circle of activists, lawyers and judges [who campaign for gay rights], which makes his decision even more impressive.

--Azzi

Erin Kilbride of the Arabic online news source Muftah complained about the erasure of the role of transgender people in securing this victory.  Kilbride holds a Bachelors degree in Women and Gender Studies and Arabic Language from Georgetown University, and attended the University of Jordan in Amman.
In gender battles from the U.S. to the Philippines, trans people are both purposefully and unconsciously excluded from public discourse.  The “transgender exclusion” permeates media coverage, advocacy efforts, health care plans, gender-based social services, and extends into the work of prominent and prestigious gay-rights organizations.

--Kilbride

Kilbride notes that Gay Star News was one of the few sites to actually use the word transgender in the title of their article about the decision:  Lebanese court throws out case against transgender woman accused of unnatural sex.
The absence of trans-anything from most headlines is, in part, due to the nature of the court’s words, which stated specifically "homosexuality is not illegal." However, it is also due to the tendency to elide gender differences with simplistic ideas about sexual preference, in a way that does not speak to – or do justice to – the complexities in the Lebanese court’s statement.  As Huffington Post blogger Dan Littauer highlighted:
[Judge] El Dahdah rejected the case based on accepting a previous ruling by the Lebanese NGO, Legal Agenda and Helem, which was as follows:

Gender identity is not only defined by the legal papers, the evolution of the person and his/her perception of his/her gender should be taken into consideration.

--Kilbride
And Kilbride couldn't resist a "shame on you" moment:
Western onlookers have a very firm notion of the trajectory along which LGBTQ rights should advance.  That trajectory places trans rights as a clear “next step,” something that can only be achieved once the groundwork has been laid by the advancement of the “L,” “G,” and perhaps “B” contingencies (representing lesbian, gay, and bisexual, respectively).  But the Lebanese courts are not following that trajectory.  The same ruling that decriminalized homosexuality also formally recognized gender variation and codified principles of self-identification.  This nuanced view of the interplay between sexuality and gender identification doesn’t fit with the traditional (Western) “gay rights” narrative, and has resulted in Western media coverage that almost completely silences the critical role a transwoman played in achieving this landmark ruling.

--Kilbride

Originally posted to TransAction on Sun Mar 09, 2014 at 01:00 PM PDT.

Also republished by Voices on the Square and LGBT Kos Community.

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