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LGBTQ rights in the Maldives

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LGBTQ rights in Maldives
Maldives
StatusIllegal (unenforced)[1]
PenaltyUp to 8 years imprisonment with possibility of lashings, house arrest; fines, and deportation for foreign nationals[2]
Gender identityNo
MilitaryNo
Discrimination protectionsNone
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

Lesbian, gay, bisexual, and transgender (LGBTQ) people are generally discriminated in the Maldives.[3]

Maldivian law criminalizes homosexuality and prescribes criminal penalties for same-sex conduct and relationships. The Penal Code of the Maldives invokes Islamic Shariah Law, which punishes homosexuality, usually through fines, prison sentences, and lashings.[4] Despite this, homosexuality is rarely prosecuted, but it remains a social taboo where sexual orientation discrimination occurs frequently, and those in the LGBTQ community are subject to discrimination, hate crimes, and other human rights violations.[5]

LGBT tourists are generally considered to be welcome at most private tourist islands, resorts and hotels. However, tourist guides warn that non-resort islands (local islands) are under Shariah Law and advise LGBT tourists to exercise caution when in public outside of hotels and privately owned tourist areas.[6]

Legality of same-sex sexual acts

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Penal Code and Islamic Law

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The Penal Code of the Maldives further criminalizes homosexuality in several ways. Criminal sexual contact is defined under section 131 of the Maldives Penal Code and refers to the prohibition of sexual contact without any reason permitted under Islamic Law. Same-sex intercourse is illegal under Islamic Law.[7] Same-sex sexual intercourse is explicitly named as an offense within section 411(2) of the Penal Code and is defined under section 411(f).[4][8]

Punishment and enforcement mechanisms

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According to the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA), the Maldives Penal Code, prior to amendment in 2015, left matters concerning sexual conduct un-codified and to be regulated by Islamic law, applicable to Muslims only. However, since the amended Penal Code came into effect, the laws concerning LGBT rights have tightened.[1]

Maximum penalties for homosexual acts prohibited under the Maldives Penal Code include imprisonment of up to one year for unlawful marriage under s410(a)(8), imprisonment of up to eight years for criminal conduct under s411(a)(2) and 411(d) with allowance for a supplementary 100 lashes punishment under Islamic Sharia Law, and imprisonment for up to four years for unlawful sexual conduct under s412.[1][3]

Homosexual acts cannot be punished with death under Maldivian law. Capital punishment, under both civil code and Sharia law, has been in abeyance since 1953.[9] During preparations to recommence executions in 2015, new regulations were passed on the implementation of the penalty:[10] Section 92 (k) of the amended Maldivian Penal Code explicates that the death penalty was only to be available for egregious purposeful killing.[4][11] Some point to section 1205, which states that "if an offender is found guilty of committing an offense for which punishments are predetermined in the Holy Quran, that person shall be punished according to Islamic law and as prescribed by this Act and the Holy Quran".[4] The Quran does not specify a punishment for homosexuality.[12][13][14][15][16] Accordingly, the punishment under Maldivian law are those specified in Sections 410 to 412.[1][a]

The plans to reimplement the death penalty were later abandoned and the moratorium on capital punishment—for any crime—was continued.[9]

Recognition of same-sex relationships

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Same-sex relationships, including same-sex marriages, civil unions, and domestic partnerships, are not recognized in the Maldives.

Section 410(a)(8) of the Maldives Penal Code (In force since 16 July 2015) criminalizes same-sex marriage by stating that it is an offense if "two persons of the same sex enter into a marriage".[4]

Discrimination protections

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There is no legal protection against discrimination based on sexual orientation or gender identity.

Constitutional framework

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In 2009, the Maldives enacted a new Constitution that included a chapter on rights and freedoms, demonstrating the desire to embrace a new culture of human rights.[17] However, this did not include any resolutions regarding LGBT human rights issues.

United Nations developments

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United Nations resolutions

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In 2008, a European-drafted statement[18] called for the decriminalization of homosexuality and recommended that states "take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention".[19] The Maldives was one of the initial 57 members (now 54 members) which signed an opposing document, read by the Syrian representative, that divided the United Nations General Assembly on the issue of LGBT Rights.[18]

As a country under Islamic Sharia Law, the Maldives followed the document's beliefs on several matters. The document stated that the European-drafted statement[18] interfered with matters that should be within the domestic jurisdiction of individual states. Furthermore, the document also stated a desire to avoid the social normalization of what were considered to be 'disgraceful acts' by setting new rights and standards that were not agreed upon by entering into membership and following the Universal Declaration of Human Rights.[18] It also claimed that the declaration was a threat to the international framework of human rights.[20]

In June 2011, the Maldives rejected a resolution submitted by the Republic of South Africa at the United Nations which sought to affirm the rights of the LGBT community. A second resolution was adopted by the United Nations Human Rights Council in September 2014 which related to sexual orientation and gender identity; however, this was again rejected by the Maldives.[21]

Universal Periodic Review

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In September 2014, in the Human Rights Commission of the Maldives (HRCM) submission to the Universal Periodic Review of the Maldives, a number of human rights issues were highlighted; however, no LGBT rights issues were discussed.[22] 'Freedom of Expression' was highlighted as an area of concern where it was noted, "there are no laws which guarantee freedom of expression in the Maldives".[22] Reference was made to the numerous death threats and other violent behavior received by human rights activists and the Commission did note the need to "take measures to address issues of threats and intimidation directed to parliamentarians, journalists and civil society activists to ensure their safety".[22]

This may or may not extend to the same persecution suffered by LGBT rights activists. The objectives of the Maldives Human Rights Commission are set out in the Human Rights Commission Act and explain why LGBT Rights were not included in the submission. The objectives of the Commission include protecting, promoting and sustaining human rights in the Maldives "in accordance with Islamic Sharia and the Constitution of the Maldives".[23]

In the United Nation's 2016 report of the Human Rights Council on its thirtieth session, it was noted that the Maldives accepted 198 recommendations made out of 258, leaving 60 recommendations rejected. These 60 recommendations included matters that were said to contradict the Islamic Faith and the Constitution of the Maldives; such as those "relating to freedom of religion, lesbian, gay, bisexual, transgender and non-traditional forms of the family".[24]: 83  Here, Action Canada for Population and Development responded by noting their concern over the Maldives rejection of "adopting a law against discrimination on the basis of sexual orientation".[24]: 87 

The Human Rights Council, in 2015, recommended that the Maldives accelerate their work towards enacting anti-discrimination legislation and to "ensure it includes a prohibition of discrimination on the basis of sexual orientation; and combat the stigmatization and marginalization of homosexuals in society."[5] It was reported that those perceived as homosexual or transgender in the Maldives were the target of hate crimes and other human rights violations and so the United Nations Population Fund (UNFPA) recommended the Maldives seek to ensure the protection of LGBT individuals from this through law reform.[5] The Committee also recommended that the Maldives "decriminalize sexual relations between consenting adults of the same sex".[5] These recommendations were noted by the Maldives but not accepted.

In the Human Rights Council's National Report for the Maldives in 2015, it was noted that since the review of the Maldives in 2010, there have been many important developments in terms of human rights as the country transitioned to a democratic society. The report does not, however, include any detailing of LGBT human rights issues or developments.[25]

In May 2015, in a briefing paper submitted to the Maldives second cycle Universal Periodic Review, the International Service for Human Rights (ISHR) said "un-codified Muslim Sharia Law criminalizes homosexual conduct, thus making the Maldives a very insecure place to advocate for the rights of persons who identify themselves as LGBT".[26]

Living conditions

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Persecution

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In 2013, a blogger named Hilath Rasheed was nearly killed in a violent attack outside his home in the Maldives due to his open homosexuality[27] and push for religious freedom.[8] Freedom of religion, which heavily interweaves with freedom of expression and sexuality in the Maldives, remains heavily restricted in the country, both legally and through public opinion.[28]

A 2014 article in New Zealand spoke of Abraham Naim, who was granted asylum due to the persecution he faced being gay in the Maldives. The Ministry of Business, Innovation and Employment in New Zealand was said to have granted refugee status because Naim was "at risk of serious harm from state agents" and would likely face further persecution for being openly gay on returning to the Maldives.[29] This was affirmed by Ibrahim Muaz, a spokesman at the President's Office, who commented that those seeking asylum abroad for reasons of sexual orientation discrimination would face prosecution upon return.[30]

While anti-LGBT discrimination is pervasive in the Maldives, it remains a popular holiday destination for LGBT couples who rarely experience the reality of the country's Islamic-based law due to the income from tourism and because tourist resorts are usually always isolated from civilian population centers and therefore not subject to Islamic law, especially evidenced by the sale of alcohol in these resorts.[6]

Rainbow Warriors[31] stated that the local Maldives LGBT movement is mostly limited to the virtual world, operating on the internet, due to the uncertainty and the intensity of homophobia in the country.[32] 2015 saw two local men arrested in their private home on one of the islands in the Maldives with charges of homosexuality following a complaint by a member of the public.[32]

Summary table

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Same-sex sexual activity legal No Up to 8 years imprisonment with whippings, house arrest, fines, and deportation.
Equal age of consent No
Anti-discrimination laws in employment only No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Recognition of same-sex couples (e.g. Civil Partnerships) No
Adoption by same-sex couples No
Gays allowed to serve in the military No
Right to change legal gender No
Conversion therapy banned No
Commercial surrogacy for gay male couples No (Illegal for all couples regardless of sexual orientation)[33]
Access to IVF for lesbians No
MSMs allowed to donate blood No

See also

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Notes

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  1. ^ While certain hadith do assign (several different) penalties,[34] the authenticity and applicability of these are disputed by a number of hadith scholars;[35][36] Quranic scholars and Islamic authorities do not categorize hadith as "Holy Quran".[13]

References

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  1. ^ a b c d Carroll, Aengus (May 2016), State Sponsored Homophobia 2016: A world survey of sexual orientation laws: Criminalisation, protection and recognition (PDF) (11th ed.), Geneva: International Lesbian, Gay, Bisexual, Trans and Intersex Association, p. 109, archived from the original (PDF) on 27 December 2021
  2. ^ "LGBT Rights in Maldives". Equaldex. Retrieved 16 April 2023.
  3. ^ a b "Maldives". Human Dignity Trust. 11 February 2019. Retrieved 25 August 2023.
  4. ^ a b c d e "Maldives Penal Code". University of Pennsylvania.
  5. ^ a b c d [1] United Nations Human Rights Council 'Compilation prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21' at 7.
  6. ^ a b "The law vs. Reality: Gay travel to the Maldives - LGBT tailor-made travel".
  7. ^ [2] Richard Burton 'The Qu'ran and Homosexuality', Fordham University. Retrieved 5 September 2017.
  8. ^ a b "Maldives". Freedom House. 4 January 2018. Archived from the original on 20 July 2019. Retrieved 20 July 2019.
  9. ^ a b Abdulla, Lamya (6 June 2022). "Maldives to continue moratorium on death penalty: Home Minister". The Edition. Home Minister Imran Abdulla has said that the Maldives still has a policy of continuing the moratorium on implementation the death penalty."..."In response to the question, Imran said that for the past half-century, all governments have followed the policy of maintaining the moratorium. "This is not a new policy introduced by this government. This is what has been done in Maldives for a long time," Imran said. He said that although several previous administrations have spoken on several occasions in connection with the death penalty for political purposes, no changes have been made to the policy.
  10. ^ "Maldives enacts regulation for death penalty". Al Jazeera Media Network. 30 April 2014. According to the OHCR, the new regulation provides for the use of the death penalty for the offence of intentional murder, including when committed by individuals under the age of 18.
  11. ^ "Maldives will not implement capital punishment: Ministry of Foreign Affairs". The Edition. 27 November 2018. The Ministry of Foreign Affairs has declared that the Maldives will not enforce capital punishment since abandoning the practice 65 years ago. According to the Ministry, the Maldives voted against the death penalty at the General Assembly of the United Nations at Geneva, Switzerland during the U.N 'moratorium on the death penalty' resolution held by the Human Rights Commission.
  12. ^ Schmidtke, Sabine (June 1999). "Homoeroticism and homosexuality in Islam: a review article". Bulletin of the School of Oriental & African Studies. 62 (2): 260–266. doi:10.1017/S0041977X00016700. S2CID 170880292.
  13. ^ a b Zaharin, Aisya Aymanee M. (9 July 2022). "Reconsidering Homosexual Unification in Islam: A Revisionist Analysis of Post-Colonialism, Constructivism and Essentialism". Religions. 13 (702): 702. doi:10.3390/rel13080702. ISSN 2077-1444.
  14. ^ Krogt, Christopher van der (17 June 2016). "Friday essay: The Qur'an, the Bible and homosexuality in Islam". The Conversation.
  15. ^ Ali, Kecia (2006). "Don't Ask, Don't Tell: Same-Sex Intimacy in Muslim Thought". Sexual ethics and Islam: Feminist reflections on Qur'an, hadith, and jurisprudence. Oxford, England: Bloomsbury; Oneworld Publications. pp. 75–96. ISBN 9781851684564.
  16. ^ Whitaker, Brian (21 June 2016). "Everything you need to know about being gay in Muslim countries". The Guardian. Retrieved 30 July 2022.
  17. ^ Purna Sen; Monica Vincent; Jade Cochran (2011). Universal Periodic Review: Lessons, Hopes and Expectations. Commonwealth Secretariat. ISBN 978-1-84929-043-2.
  18. ^ a b c d Worsnip, Patrick (18 December 2008). "U.N. divided over gay rights declaration". Reuters. Retrieved 31 August 2017.
  19. ^ "UN states urged to decriminalise homosexuality". The Daily Telegraph. 19 December 2008. Retrieved 31 August 2017.
  20. ^ MacFarquhar, Neil (18 December 2008). "In a First, Gay Rights Are Pressed at the U.N." The New York Times. Retrieved 3 September 2017.
  21. ^ Adam Howard (26 September 2014). "UN passes resolution on behalf of LGBT citizens around the globe". MSNBC. Retrieved 4 September 2017.
  22. ^ a b c [3] Archived 13 July 2017 at the Wayback Machine Human Rights Commission of the Maldives (HRCM) 'HRCM Submission to the Universal Periodic Review of the Maldives, April–May 2015 (22nd session)', p. 5
  23. ^ [4] Archived 2 September 2010 at the Wayback Machine Maldives Human Rights Commission Act s 2(b).
  24. ^ a b [5] Archived 10 September 2017 at the Wayback Machine United Nations General Assembly 'Report of the Human Rights Council on its thirtieth session'.
  25. ^ [6] United Nations Human Rights Council 'National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21*'.
  26. ^ [7] Archived 23 July 2018 at the Wayback Machine International Service for Human Rights (ISHR) 'Maldives: Briefing paper on the situation of human rights defenders'. 29 August 2014. Retrieved 4 September 2017.
  27. ^ "Trouble in paradise: The darker side of the Maldives". The Independent. 11 April 2013.
  28. ^ "Maldives 2009". Freedom House. Archived from the original on 10 September 2017. Retrieved 5 September 2017.
  29. ^ Tom Hunt (2 June 2014). "Gay refugee wins drag pageant". Stuff. Retrieved 6 September 2017.
  30. ^ "Homosexual Asylum Seekers from The Maldives Face Prosecution Upon Return". Global Voices. 6 June 2014. Retrieved 7 September 2017.
  31. ^ [8] Rainbow Warriors 'LGBT rights in the Maldives: 2015'.
  32. ^ a b [9] Colin Stewart 'Maldives: Lenient no more, island nation arrests 2' 1 September 2015. Retrieved 8 September 2017.
  33. ^ "Surrogacy law: regulated, unregulated". whereivf.com. 13 June 2022.
  34. ^ Sunan Abi Dawud 4463 - Prescribed Punishments (Kitab Al-Hudud) - كتاب الحدود - Sayings and Teachings of Prophet Muhammad (صلى الله عليه و سلم), Sunnah.com
  35. ^ Sheikh Mohamed El-Moctar El-Shinqiti. "Threats to Behead Homosexuals: Shari'ah or Politics? – Disciplinary Penalties (ta'zir) – counsels". OnIslam.net. Archived from the original on 2 March 2013.
  36. ^ PinkNews Staff Writer (11 June 2008). "Fatwa condemns Gambian gay execution threat as unsound". PinkNews.

Further reading

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Bureau of Democracy, Human Rights, and Labor (2020). "Section 6. Discrimination and Societal Abuses". 2020 Country Reports on Human Rights Practices: Maldives (Report). United States Department of State. There were no reports of officials complicit in abuses against LGBTI persons, although societal stigma likely discouraged individuals from reporting such problems. Local citizens who expressed support for LGBTI rights on social media reportedly were targeted for online harassment as "apostates" or irreligious.

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