Mar 10, 2020

TUNIS — In a first for Tunisia and the Arab world, Shams, an association founded in early 2015 to defend LGBTQ rights, was granted legal protection in a ruling handed down Feb. 21 by Tunisia's Court of Cassation following the state's attempts to shut down the organization.

In December 2015, Kamel Hedhili, head of state litigation, had filed a complaint against the organization, resulting in the Court of First Instance suspending the association's activities for 30 days beginning Jan. 4, 2016. Hedhili’s charged that the association had violated the Decree of Associations and had failed to complete the legal registration procedures, ostensibly because its registration was rejected for publication in the Official Gazette, a decision made by the government and over which Shams had no control. In addition, he asserted that the organization violates the Arab-Islamic norms of Tunisian society because it advocates and defends sodomy, which is a criminal act under Chapter 230 of the Penal Code.

The Decree of Associations (2011) stipulates that associations in their statute, activity, and financing, shall respect the principles of the rule of law, democracy, pluralism, transparency, equality and human rights. It also prohibits them from advocating or involvement in violence, hatred, intolerance and discrimination on religious, sexual or regional grounds. According to Hedhili, Sham's violated the decree because its defense of the rights of homosexuals represents sexuality-based discrimination.

On Feb. 23, 2016, the Court of First Instance ruled that Shams “does not violate the law” and allowed it to resume its activities. After addition judicial procedures and postponements, Hedhili challenged that ruling on Feb. 20, 2019, on the grounds that the association's bylaws state that its goal is to defend sexual minorities, which, he said, is inconsistent with “the Islamic values of Tunisian society, which rejects homosexuality and prohibits such inappropriate behavior,” on the basis of Chapter 230 of the penal code.

Three days later, Amna Guellali, Tunisia director at Human Rights Watch, called on the government to stop its legal battle against Shams, especially after the ruling clearing the association of breaking any law and allowing it to continue functioning.