Dangerous positions: Male homosexuality in the new penal code of Iran

Abstract

What does it matter who has what position in the same-sex sexual act? The difference can be life and death. This paper, drawing on sociology of punishment and the critiques of cultural determinism in explaining capital punishment, examines the new penal code of Iran (2013) with respect to same-sex sexual acts between men, analyzing it in terms of its literal and symbolic significance for homosexual men in Iran and its broader meaning and function within the current socio-political and economic situation of Iran. The new penal code makes distinction between male same-sex partners in terms of their respective position during intercourse. In a somewhat counter-intuitive manner, the penetrating man receives more leniency than the one who is penetrated. On the surface, we note greater leniency towards a whole class of gay men (the “tops”). But beneath the surface, some of the new provisions reveal potential anxieties around masculinity and the alteration in relationship between punishment and national identity in Iran as the country grapples with significant internal and geopolitical challenges. Our paper contributes to the literature on sociology of punishment that considers the interplay between global and national politics and the role of sexuality and gender in analyzing capital punishment.

Keywords

capital punishment gender Iran national identity penal code sexuality

“In Iran, we don't have homosexuals like in your country.”

Former Iranian president, Mahmoud Ahmadinejad, 25 September 2007

Introduction

A new penal code was introduced in Iran in 2013, which includes significant revisions to sections on same-sex sexual acts. Although on the surface and overall, sanctions have become more lenient, changes were made in the wording and categorization of sexual acts, which have significant symbolic and actual consequences for the control of sexuality. In particular, article 234 of the new penal code makes a significant distinction between two parties in male same-sex intercourse: the one who penetrates and the one who is penetrated. The latter is always condemned to death while the former can now escape this penalty under certain circumstances. The pre-existing penal code made no such distinction and specified the death penalty as the punishment for all male same-sex sexual intercourse. In our view, the new hierarchy of sexual acts between men and the new hierarchy of punishments call for analysis.

In this paper, we draw on the literature from sociology of punishment and punitive social control (Chua, 2012; Fourcade and Savelsberg, 2006; Frank and McEneaney, 1999; Frank et al., 2010; Garland, 2005; Greenberg and West, 2008; Jones and Newburn, 2013; Kaufman, 2014; Melossi, 2001; Savelsberg, 2004; Savelsberg and King, 2005; Smith, 2003) to analyze Iran’s new penal code on same-sex sexual acts and contribute to ongoing debates in criminology and penology about how governments exert authority by using criminal law to regulate sexuality and, ultimately, to create a heteronormative national identity. In response to calls for studying the salience of states’ legal violence against minorities (Kim-Puri, 2005), and exploring the linkages between national lawmaking and global norms (Fourcade and Savelsberg, 2006; Halliday and Carruthers, 2007; Jones and Newburn, 2013), we ask what is the local and global context of Iran’s new penal code? How does the new law regulate sexuality? And what are the symbolic meanings of this regulation for Iran’s ongoing process of national identity formation? Our data broadly support theories of long-term social and penal change such as Frank, Camp, and Boutcher’s “world-individualization” theory (Frank et al., 2010). This theory proposes that, broadly speaking, the regulation of sexuality has become liberalized since WWII (see below). However, as we go beyond the global trends and dig deeper into our case study, we find complexities (Newburn and Jones, 2007) that do not fit neatly within the “world-individualization” framework as a linear model. In particular, we find that Iran’s conformity with the global trend is complicated by both religious constraints (Baker and Booth, 2016) and geopolitical considerations. We explain these complexities by drawing on the feminist constructivist theoretical framework (Enloe, 2014; Finnemorem and Sikkink, 2001; Locher and Prugl, 2001) to analyze the gendered geopolitical context in which homosexual sexual acts are classified into a hierarchy and punished as such. Drawing on these perspectives, we make two interrelated arguments in response to our research questions: that the hierarchy of punishments reflects a gendered understanding of sexuality in the current readings of religious texts; and that this understanding resonates with certain anxieties about masculinity in the current social and geopolitical context of Iran. In this light, the harsher punishment against homosexual “bottoms” resonates with (although it is not caused by) the need to project a strong masculine Shia-Muslim national identity to the world at a time of heightened tensions with regional rivals and continued contestations with global adversaries.

In the following sections, we will first briefly review the relevant sociological literature on punishment, sexuality, and embedded social control. Second, and to further contextualize our study, we outline a brief history of the regulation of gender and sexuality in Iran highlighting how it has intersected with the nation-state building projects. Third, we will focus on the 2013 version of the penal code. Next, we will draw on the work of Frank et al. (2010) to discuss these recent changes as part of a global trend of liberalization of laws regarding sexuality. But as we will see, our case study has gendered and geopolitical complexities that do not fit neatly within this model. We will draw on feminist constructivist approach to explain these complexities. We conclude by arguing that any analysis social control and legal punishments of gender and sexuality in countries that are in the throes of human rights struggles, such as Iran, has to take into account the local and global political, social, economic and cultural dynamics, because these dynamics might shed light on the actual meanings of rights and on the formulation of laws.¹

Literature review

Our study contributes to the sociology of punishment by analyzing sexuality and punishment in Iran and the Middle East, which is severely understudied as compared to the proliferation of publications on the Sub-African and South East Asian countries (Blackwood, 2007; Boellstorff, 2006; Chua, 2014; Ibrahim, 2016; Johnson, 2014; for exception see Zuhur’s, 2005 study on gender, sexuality and the criminal laws in the Middle East). But in undertaking this case study we have attempted to avoid cultural determinism and methodological nationalism, which typically governs data collection and analysis regarding the role of religion, culture, and historical contingencies in the emergence of new laws (Fourcade and Savelsberg, 2006; Garland, 2005). We consider the embeddedness of social control (Garland, 2006; Melossi, 2001), and emphasize the need to globally contextualize national case studies (Frank and McEneaney, 1999; Halliday and Carruthers, 2007) and to incorporate the symbolic meanings of the norms that give rise to certain laws as well as the meanings that these laws produce in turn (Frank et al., 2010; Savelsberg and King, 2005; Smith, 2003). We argue that these two points are indeed complimentary and enable more comprehensive analyses of capital punishment and national identities. With regards to situating our case study in its global context, we highlight the interplay of global and local dynamics in the areas of politics, society, economy and culture (Fourcade and Savelsberg, 2006). There is a rich tradition of writing in the history of rights that shows when granting (or denying) rights, states do not act in a vacuum (Marshall, 1950; Tilly, 1990 , 1998). Rather, political expedience, the weight of the local character and history, as well as internal and external pressures often play a role in how, when and which part of the canon is enacted and enforced (Baker and Booth, 2016; Garland, 2005; Halliday and Carruthers, 2007). It is these finer nuances that are left out in most accounts of socio-legal change in Iran. With regard to religion, in particular, we draw the reader’s attention to the vastly different ways in which Shia religious sources on homosexuality have been variously interpreted and enacted in the three versions of Iran penal code between 1925 and 2013 and we argue that the treatment of same-sex sexual partners in Iran, gay men in particular, cannot be adequately explained outside of the contentious and volatile geopolitical context in which Iran is situated.

With regards to explicating the symbolic meanings, whether instigating or resulting from law, we argue that much of the power of legal prohibitions, the penal codes in particular, lie within their symbolic reach and significance in society rather than being merely tied to their actual repressive and violent potential (Chua, 2014; Garland, 2005). Some have even argued that social control in fact works through “symbolism and mythology in popular, political and expert discourses on punishment technologies and punished bodies” rather than merely through the rational and instrumental application of laws and norms (Smith, 2003: 27). In many states, legal prohibitions and religio-medical discourses often focus on constructing normalizing femininities and masculinities that align with nation-state building projects. These arguments closely support the claims that gender and sexuality are integral parts of penal laws that establish national belonging through “identification and expulsion of particular kinds of people” (Kaufman, 2014: 136). Our case study further shows that gendered constructs are not limited to differentiating between the sexes but are drawn from and applied to intra-group differences, e.g. “bottom” or “top” partner in homosexual act, to create hierarchies of inclusion and exclusion.

Homosexuality in Iran’s penal code

Iran’s first penal code was enacted in 1925, bringing together the format of the Napoleonic Code and the content of a widely pluralistic field of Shia-Islamic jurisprudence. This involves the difficult task of canonizing Shia Islamic jurisprudence (a wide field containing hundreds of years of disparate and often contradictory precedence) as well as specifying “governmental sanctions” for crimes and punishments that fall outside Shia Islamic jurisprudence. Examples of the former would be murder, theft, and adultery for which there is an existing history of religious rulings and sanctions while examples of the latter would include drug trafficking and embezzlement. Article 207 of this penal code stipulates the death penalty for livat (anal intercourse between men), lumping it together with adultery and rape. However, the 1925 penal code seems to have been concerned with non-consensual same-sex acts between men as the accompanying implementation guideline only uses the example of a person in a position of power forcing another individual into livat. This specific preoccupation with non-consensual same-sex acts is meaningful, given the fact that at the time male same-sex acts often involved amradbazi, or the use of subordinate adolescent males (such as house servants) by their male superiors for the purpose of sexual gratification (Najmabadi, 2008: 285). In any case, the penalty for livat was later cutback to ten to twelve years of imprisonment. Female same-sex acts are not mentioned or penalized under the 1925 penal code. This penal code was enacted against a century-long history of modern nation-state formation and the formation of new attitudes toward sex and gender, male homo-sociality and female domesticity in particular, starting in the 19th-century. European travelers and observers lumped these practices together with homosexuality and branded all of them as backward (Najmabadi, 2005: 55). The Iranian elite who were interested in modernizing the country on the model of Europe also adopted similar notions and argued for the increased participation of women in the male-dominant public spaces in order to stem the tide of homosexuality and to re-create the domestic sphere around the European ideals of domestic love. They urged the elimination of male bonds and ostracized male same-sex desire (Najmabadi, 2005, see chapter 3). Around the same time, as a modern standing army was built during the first half of the 20th-century, a new form of hegemonic heterosexual masculinity, to paraphrase Connell (1998), was called upon to rid the Iranian homeland, depicted as an aging ill mother, from physical or moral diseases such as homosexuality (Tavakoli-Targhi, 2002).

The period between WWII and the 1979 revolution created a new discourse of homosexuality. The reigning Mohammad Reza Pahlavi ramped up Iran’s modernization project, with a vision to create a national identity by reviving the pre-Islamic ancient imperial Persian tropes (Afary, 2009; Kashani-Sabet, 2005). During this period of great transformation, same-sex sexual acts remained illegal while modern psycho-medical discourses proliferated, portraying homosexuality as “almost always violent, akin to rape, prone to turn to murder, and almost always aimed at the underaged” (Najmabadi, 2011: 536). And yet, ironically, the ruling Pahlavi family itself was accused by Islamists and Marxists of practicing and tolerating homosexuality, which was interpreted as a sign of decadence and a Western plot to pollute Iranian youths and undermine the manliness of the nation’s soldiers (Gerami, 2003).

The Islamic Republic, founded in 1979, also adopted a nationalistic rhetoric, albeit imbued with Islamic sentiments, to reinforce a gendered understanding of sexuality. In this rhetoric, which was prominent during the Iran–Iraq war (1980–1988), the nation and homeland were portrayed as female bodies that had to be protected by the male soldiers of the nation. Both leftist and Islamist groups shared the idea of protecting their honour, a reference to women and the motherland (Gerami, 2003; Karimi, 2016; Sadeghi, 2008). This religious nationalism is founded on a homosociality devoid of homoeroticism where men were supposed to form a masculine, but pious, public space (Freidland, 2002).

The penal code post-1979

Despite its zealous pursuit of Islamicizing the entire ruling structure, it took the new regime eleven years after the Islamic Revolution to formulate and enact its first Shia-Islamic penal code in 1991, reflecting the ongoing difficulties of canonizing Shia-Islamic jurisprudence in the format of the Napoleonic Code. This penal code had twenty-two articles regarding same-sex sexual acts (articles 108 to 134), outlining the punishments for each type of homosexual transgression. Article 108 defines livat as intercourse between two men inclusive of penetration or tafkhiz [non-penetrative sex between the thighs or buttocks]. Penetrative livat is punished by death penalty (Article 110) but the type of killing is left to the judge. The punishment for tafkhiz or non-penetrative sex is set at 100 lashes (Article 121), unless the active party is non-Muslim and the passive party is Muslim, in which case the non-Muslim penetrator is subject to death penalty. As for women, Article 127 defines musahegheh [tribadism] as hamjensbazi [literally same-sex gaming] among women using their genitals. As will be discussed later, hamjensbazi is the older, derogatory word for homosexual sex among men and women, although the 1991 penal code only uses it for women and in a manner that seems random. Article 129 sets punishment for such cases as 100 lashes with no distinction between Muslim and non-Muslim partners. All the above rules apply to consensual acts among adults of sound mind.

Starting in 2007, a draft bill for a revised penal code put forward by the government of Mahmood Ahmadinejad made its way to the parliament where it was debated and amended until 2009 when it was sent to the Guardian Council, an unelected body of religious and constitutional jurists with ultimate say on all legislation. After four more years of back and forth between the parliament and the Guardian Council, the legislation was ratified into law in 2013. Our main source of analysis in this section is an online archive posted on the website of the Guardian Council containing 52 documents from the original bill to the final law and the debates between and within the parliament and the Guardian Council.² It must be noted that the new law was never actually debated on the floor of the parliament. Using a procedural maneuver, the judiciary committee of the parliament made itself the sole place for debating and amending the bill (Karimi and Talani, 2011), therefore probably giving themselves more latitude to discuss contentious issues. We focus here on the sections concerning same-sex sexual acts, comparing changes between the 1991 and 2013 penal codes, as well as changes that happened to the draft legislation of the 2013 penal code as it was debated within various government bodies from 2007 to 2013. The new penal code of 2013 contains only eight articles on the subject of homosexuality.

The main changes in 2013 penal code take place in the articles dealing with male same-sex acts. Article 234 makes a significant new distinction between active and passive partners in male same-sex intercourse. “Active” men, or “tops”, are no longer subject to the death penalty unless they are found to have committed adultery, used coercion, or if they are a non-Muslim penetrating a Muslim man. There was dissent within the Guardian Council regarding the new leniency for “active” men as well as demand to eradicate the distinction based on the depth of penetration (Majma’e mashverati-ye feghhi-ye shora-ye negahban, 2009a: 19; Majma’e mashverati-ye feghhi-ye shora-ye negahban, 2009b: 20). But the new provisions stood. The type of “killing” is specified and restricted to “execution” (for which hanging is the common form in Iran) whereas the old law left it to the discretion of the judge, theoretically leaving the door open for more gruesome types of killing. The section on female same sex desire has no significant change that would impact sentencing. The Guardian Council also advised (successfully) against maintaining the punishment for bed-sharing among naked same-sex persons, which had been included in the old penal code.

There are two other significant changes between the 1991 and 2013 laws. The first is the introduction of the word hamjensgarayi, literally meaning “same-sex orientation” and the other is the introduction of a sort of “don’t ask, don’t tell” approach toward homosexual acts. The 1991 law deals with specific sexual acts such as penetration or erotic kissing. It does not have a concept of erotic desires between same-sex persons. It does use the word hamjensbazi (literally, “same-sex gaming”) in a clumsy and colloquial reference to homosexuality but it uses it only for women and in a haphazard manner. The new law is different in that it introduces, in a systematic manner, a notion of homosexuality that goes beyond overtly sexual acts. Article 221–24 of the bill approved by the cabinet in 2007 refers to hamjensbazi in this way: hamjensbazi of the male person in cases other than livat and tafkhiz, including erotic kissing and touching is punishable by up to 74 lashes taking into account the crime and the criminal’s personal background. A note generalizes this to women as well. This became Article 234 of the 2009 bill amended by the parliament, where hamjensbazi becomes hamjensgarayi, literally same-sex orientation or homosexuality, which is the preferred word for LGBT activists in Iran as opposed to the previously more common and rather derogatory hamjensbazi (Karimi, 2018; Shakhsari, 2012: 28). Significantly, this penalty has no precedence in the relevant religious law and is instead imposed under discretionary administrative penalties. Effectively, the law recognizes that there are acts, beyond intercourse, that indicate same-sex desires, including kissing and touching and acknowledges the existence of a “tendency” or “orientation”. It then makes a discretionary move beyond religious law to criminalize this “tendency”, but does so using the more dignified terminology preferred by LGBT activists. The lawyers at the Research Centre of the Guardian Council raised a significant objection to the new wording: “hamjensgarayi is a label that refers to an internal orientation in the individual and not to an act. Therefore it is more correct to use the label of hamjensbazi which refers to an act” (markaz-e tahghighat-e shoray-e negahban, 2009: 40). Despite these objections, the new wording was kept in the new penal code. Thus, homosexuality is at once legally recognized but also punished.

Lastly, the bill, from its first draft put forward by the Ahmadinejad cabinet to its final version ratified by the Guardian Council, contains an important article (241 in the ratified legislation) akin to a sort of ‘don’t ask, don’t tell’ policy. It bans authorities from conducting investigations into ‘issues that are hidden and kept from the public eyes’. In the absence of evidence or a confession, authorities cannot investigate same-sex acts unless sexual assault, luring, and kidnapping are suspected.

Discussion: The phalo-centric hierarchy of sex

Our case study entails complexities that foreclose the possibility of straightforward theorizing. Iran’s new penal code makes distinctions between male and female homosexuals, and further distinctions among male homosexuals between the “top” and the “bottom”, Muslims and non-Muslims, married and unmarried. Overall, and with some reservations, the females, “tops”, non-married men, and Muslims are treated more lightly. Clearly, there is more at stake here than can fit one explanation. We therefore take a two-step approach to the problem. In the first place, we explain the overall increased leniency of the penal code, and in the next step we will explain why some categories of individuals (most prominently, the male homosexual “bottoms” and non-Muslims) do not benefit from this increased leniency.

The overall increased leniency fits the existing accounts of global trends. Frank et al.’s (2010) comprehensive study has shown the existence of a wider global trend in which laws governing sexuality have become more “individualized” since the Second World War, meaning that they increasingly place greater value on personal freedom and consent while de-emphasizing the supposed harm to the community. Using a “world society” perspective, Frank et al. (2010) attribute this trend to the spread of world individualization (the global spread of individualism as a desired value), which is in turn supported by world structuration (the increasing dominance of global and multinational governance structures), and world legalization (the increasing influence of global and multinational legal structures). This trend is found across various religious and regional lines and includes Muslim countries. Frank, Camp, and Boutcher’s study predates Iran’s new penal code but our own case study provides further evidence for the trend that they describe. In fact, data as well as our own observations generally support the greater individualization of Iranian society especially in the period after the end of the Iran–Iraq war in 1988. Rates of marriage have declined, the marriage age has increased, the divorce rate has climbed up, fertility has plummeted, there is a well-document legal acceptance of transgenderism as a medical (rather than a moral) matter, and initiatives to “organize” and legitimize the sex-trade under the guise of “temporary marriage”. The new penal code, in particular, reduces the number of sexual offences punishable by capital punishment and broadens the definition of sexual assault to include cases where consent is not explicitly given. All of these confirm Frank, Camp, and Boutcher’s theory of individualization.

However, our study also provides in depth details showing that “world individualization” alone is not sufficient in explaining all the dynamics at work. Iran’s recent history shows both progress (e.g. on transgenderism, homosexuality, and consent) and setbacks (e.g. with regard to reproductive autonomy, as will be shown below). The 2013 version of the penal code, in particular, presents uneven developments in the sexual terrain, introducing oddities such as the distinction between “tops” and “bottoms” and the criminalization of homosexuality as a tendency that might only be explained with reference to the symbolic politics of gender at the local and geo-political levels (Jones and Newburn, 2013; Newburn and Jones, 2007). We will do so by drawing on the feminist constructivist approach, which was originally developed in the context of international relations studies but has significant relevance to the case of legal reform in Iran.

But first let us look more closely at the “oddities” and setbacks that we intent to analyze. Perhaps the most striking aspect of the changes in the 2013 penal code is its explicit enunciation of a phalo-centric hierarchy of sexual acts and desires, dividing a penetrating top from a penetrated bottom. Traditionally, Muslim jurists understand sexual intercourse as the “male act of phallic penetration” wherein masculinity “is the source of action and femaleness is the source of reaction” (Omar, 2012: 237). Sex thus involves an active male and a passive female. However, this logic has not, to our knowledge, been previously applied to same-sex acts and it definitely was not present in the previous versions of Iran’s penal code. But when this phalo-centric logic is extended to same-sex acts, the position of the man who is penetrated becomes very problematic as it subverts gender norms. The website of the influential Shia seminary in Qom (Hawzah) published an annotation on the existing Shia jurisprudence on same-sex acts in 2010 amidst debates on the new penal code. It is an attempt to resolve various existing Shia sources on the topic. The annotation takes it for granted that penetration is the natural expression of male sexuality. This act of penetration is religiously sanctioned when it takes place lawfully with a woman. The desire to penetrate another male is unnatural and sinful. However, the lack of regular and guaranteed access to a female spouse to penetrate and dominate is a mitigating circumstance: What is a man to do who cannot lawfully penetrate a woman? If such a man succumbs to his desires and penetrates another man in lieu of a woman, he is surely sinning but he is at least acting in accordance to his natural masculine desire for penetration. That is why he will only be punished by flogging not by death. On the other hand, a man who allows himself to be penetrated acts contrary to what is natural for a man and nothing can excuse his behavior or lessen his punishment. There simply is no “natural” force compelling a man to desire being penetrated, and therefore the passive man is not entitled to any special considerations even if he has no regular lawful access to a female sex-partner (Hawzah, 2010). The passive partner in male same-sex sexual act is stigmatized as a man who has failed masculinity and should be eliminated from society while the active partner is still acting according to masculine norms and is eligible for certain special considerations (see for comparison, Kaufman’s, 2014 study on gender norms and British identity), except when there are aggravating circumstances such as rape and adultery.

It is worth emphasizing that this gendered understanding of homosexuality is not unique to Iran but that Iran is unique in codifying it in the law. Anthropological evidence points to forms of institutionalized homosexuality in which one partner undergoes a symbolic gender change, e.g. one of the men becomes a woman and even experiences spurious pregnancy or one of the females fulfills male gender roles such as hunting (Devereux, 1937). Even in some gay circles in contemporary western societies (Carballo‐Diéguez et al., 2004; Wegesin and Meyer-Bahlburg, 2000) as well as in legal proceedings, heterosexual individuals and legal experts may draw on gender stereotypes to make distinctions between tops and bottoms (Ayres and Luedman, 2013; see Soucek, 2013 for a contrasting analysis of the ways in which gender norms inform court decisions in providing more protection for “perceived homosexuals”). But we are not aware of other instances in which such distinctions are codified in modern laws, except for the new penal code of Iran.

In the same context, the comparably lighter penalty for female partners of homosexual acts also becomes understandable. The wording of the new penal code of Iran suggests that female homosexual acts (or musahegheh) do not involve penetration and the actors are not explicitly divided into active or passive. Therefore, in the mind of the lawmaker, female same-sex partners do not act against their “natural” position as the passive recipient of penetration.³ And presumably women are in no position to gravely endanger public order or threaten the sanctity of family and marriage. Their lesser status ensures that their acts are of little symbolic or real consequence. Again this situation is not limited to Iran. Chua (2014), analyzing LGBT’s legal rights in Singapore, also observes the absence of any punishment against women. Indeed the existing literature indicates that historically woman’s sexual subjection to political, medical and religious regulation has been in relation to their reproductive roles as wives and mothers while their non-reproductive sexual acts have often remained outside of or less regulated by states and through penal codes (Frank and McEneaney, 1999).

It is within the logic of activity and passivity, masculinity and femininity, domination and submission that we can also understand why non-Muslim men who penetrate Muslim men will always, and regardless of any mitigating circumstances, be subjected to the death penalty. A non-Muslim man cannot be allowed to dominate a Muslim man under any circumstances. In fact, Islamic jurisprudence has several examples of rules prohibiting Muslims putting themselves in positions of subordination to non-Muslims. And here resides a clue to the political underpinnings of the penal code in both its old and, especially, new formulations: perhaps underneath the obsession with natural masculinity and its expressions are anxieties about national-Islamic strength. The phallocentric hierarchy of same-sex sexual acts has special resonance within a male dominant political structure that is jockeying for positioning within a regional and global hierarchy of nations. Seen from the point of view of the global and regional geopolitics (Fourcade and Savelsberg, 2006), the existence of men who act like women and allow themselves to be penetrated (even desire it!) hampers the creation of a homogenous national identity centered around strong, undiluted masculinity.

We now turn to feminist constructivism to explain this point. The feminist constructivist approach takes gender as “constitutive of [international] relations and vice versa”: it “understands masculinities and femininities as an effect of [world] politics” (Locher and Prugl, 2001: 116). Feminist constructivism sees gender as a “systematic social construction that dichotomizes identities, behaviors, and expectations as masculine and feminine” (Peterson, 1992). Intra- and inter-government politics simultaneously depend on and reproduce such gendered constructions of masculinities and femininities (Enloe, 2014). For instance, it has been shown that sovereignty and security are directly tied to and legitimized by hegemonic masculinity (Peterson, 1992; Tickner, 1992). Examining various forms of state violence, including militarism, war, security measures and surveillance, Enloe (2014) argues that they are all dependent on gendered constructs: the masculine is warrior and protector and the feminine is domestic and protected. Feminist constructivism emphasizes that “hegemonic masculinities” (to paraphrase Connell and Messerschmidt, 2005), as the cultural ideal of patriotism, courage, loyalty, and physical power, are “sustained through [their] opposition to devalued masculinities and femininities” in order to perpetuate “masculinized power structures, including those that frame international relations” (Locher and Prugl, 2001: 116). Naturally, the outward projection of masculine prowess is not successful unless it is sustained by a domestic project of masculine national identity formation.

Although feminist constructivism was conceived as a theory of international relations, there are lessons in it for socio-legal scholarship (Tickner, 2005). In our particular case, we are describing an instance of law reform in which gender seems to play a major role both at the national and international levels. Iran’s legal system does not operate in isolation. The law and the legislator must thread a fine line between several disparate and contradictory factors: the mandate to codify Shia Islamic jurisprudence, the changed landscape of gender domestically, international pressures to address human rights issues, and a hostile regional geopolitical climate in which Iran must maintain a strong, masculine militaristic image. While outwardly dismissing human rights-based criticism as a politicized intervention in its domestic affairs, Iran is sensitive to it as it tries to project a more progressive image of itself as compared to what it considers to be its more “backward” and “authoritarian” regional rivals such as Saudi Arabia.

In recent decades, Iran has been faced with heightened regional and global tensions, which includes several rounds of sanctions over its nuclear program, ongoing and escalating tensions with regional rivals, and the intensification of its long-standing animosity with the U.S. after George W. Bush labeled Iran as part of an “axis of evil”. Intertwined with these external vulnerabilities are massive and unprecedented changes in the domestic gender landscape, which are perceived as the softening of men—or a crisis of masculinity. This perceived “softening” would be a serious threat to a nation whose military morale and economic strength are built around gendered expectations from men. Internal mismanagement and the aforementioned sanctions have crippled Iran’s economy in the past few decades (Pillar, 2014), resulting in high unemployment rates, at an official rate of 12.7% ( The World Bank, 2017a , 2017b), which has hit young men hard. Scholars who have studied the historical reconfigurations of masculinity (e.g. Kimmel, 1987) have noted that men’s unemployment as well as pressures to compete with women in the job market can create a crisis of masculinity. These pressures are particularly high in Iran where men are expected to be the main breadwinner in the family and where attaining full manhood is preconditioned on becoming an income earner (Abbasi-Shavazi and McDonald, 2008; Gerami, 2003). Aside from their difficulties in the job market, Iranian men are also faced with strong competition from women in educational and academic fields. Most recently, the ratios of female to male students entering universities have reached 65 to 35 percent, prompting concerns among some parliamentarians about men’s access to education (Bureau of Social Studies, Parliament, 2007: 3, 53). In addition, the fertility rate has plummeted from 4.8 births per woman in 1990 to 1.7 in 2015 and the age of marriage has gone up ( The World Bank, 2017a , 2017b), all of which empower women in the private and public spheres. The Supreme Leader has personally intervened on the question of population growth rate and expressed concerns about how a declining population might adversely impact national strength (BBC, 2012). At his urging, the parliament passed new legislation scaling back the country’s preexisting population control program. Significant, and highly controversial, among the measures contained in the new legislation is the ban on vasectomy and tubectomy, although most news reports primarily focused on the ban on vasectomies (see, e.g. BBC, 2014; Farda News, 2014), which is performed on men and has significant symbolic connotations in relation to ideas of virility, masculinity, and reproduction. In this context, homosexuality becomes doubly problematic because of its perceived inability to contribute to marriage, family building, and population growth (Blackwood, 2007; Yue and Zubillaga-Pow, 2013).

As Iran grapples with geopolitical tensions over its nuclear program and regional standing, the perceived crisis of masculinity has a particular resonance. As Puar and Rai (2002) show, the war on terrorism brought to the fore a slew of homophobic and racist images that showed Middle Eastern men as sexual deviants and emasculated terrorists. Their supposed failed masculinity underlies their terrorism, which in turn justifies torturing them by sodomy in places like Abu Ghraib (Puar, 2011: 115; Puar and Rai, 2002: 126, see also Nusair, 2008). Ironically, many Muslim countries, Iran included, are themselves accused of homophobia and criticized by Western countries for violating the rights of LGBT individuals. The politics of the western human rights advocacy, especially regarding LGBT rights, has turned the Middle East into a cultural battleground (Dalacoura, 2014), and has created a sense among political leaders there, and in other parts of the non-western world, that gay rights advocacy is the latest tool of western domination, a threat to their sovereignty, and as a carrier of “cultural perversion” (Long, 2004). Such fears might be at work when governments around the world crackdown on gay activists and gay men, including in Egypt where gay men have been arrested and accused of blasphemy and satanic beliefs (Massad, 2007), in Kenya, where the government has publicly rejected “the immoral culture of homosexuality and lesbianism”, and even in Zimbabwe, where the government has equated gay rights activists with sodomizers and drug addicts before cracking down on homosexual men (Long, 2004). In Frank, Camp, and Boutcher’s analysis of the trends of individualization in sex laws show that the rates of sex-law reform is slower in the Middle East than the rest of the world due to factors that are regional (rather than religious) in nature. Although Frank and colleagues do not explain the reason behind this finding, Greenberg and West’s (2008: 311) study highlights the role of the perceived social threats in instigating the deployment of legal violence and death penalty by Middle Eastern states

A country involved in a hot or cold war is likely to have a political culture that depicts the enemy as an implacable foe and endorses killing as necessary for defense or to achieve other political goals…The logic by which an enemy is constituted as unredeemably wicked and is targeted for death is easily extended to those considered to be internal enemies… We might anticipate that militaristic countries will be more likely to use capital punishment as part of a “war on crime”. (also see Amar (2011) for a similar study on the emergence of restrictive socio-legal projects on gender and sexuality in Middle East)

Recent military interventions in the Middle East and political and economic sanctions against Iran may thus be linked to upholding anti-homosexual laws and suppressing sex-law reforms (Frank et al., 2010).

Conclusion

We close by arguing that any analysis of LGBT rights in countries that are in the throes of human rights struggles has to take into account the local political, social, economic and cultural dynamics, because these dynamics might shed light on the actual meanings of rights and on the formulation of laws.

In a global context that remains hostile to Islamic traditions and Muslims, as reflected in Trump’s popular anti-Muslim rhetoric in the United States, it is vital for academics and activists to remember that Islamic traditions and Muslim identities are not static. Instead, they operate along with and in response to developments in the world. Admittedly, some of the punishments that derive from Islamic legal traditions are not completely compatible with current-day international human rights standards. This is particularly the case with regard to the punishment of homosexual acts. However, there is a noticeable proliferation of support for LGBT rights among Muslim populations, the youths and diaspora groups in particular (Shakhsari, 2012). Some Iranian religiously oriented intellectual have even tried to find compatibilities between Islam, Shi’ism in particular, and homosexuality and homoeroticism (e.g. Naraghi, 2010). As we have seen, even the new penal code in Iran, despite maintaining a punitive approach to homosexuality, has managed to introduce changes that might benefit some men who are accused of engaging in homosexual intercourse.

The facts presented in this paper also suggest that abrupt and hostile interventions in other countries on behalf of aggrieved groups are less productive than long-term dialogical attempts that ensure collaboration with local activists and politicians while being respectful of local sensitivities. This point is evident in the appearance of hamjensgarai (homosexuality) in the wording of the new penal code. It is possible that the struggles of Iranian LGBT rights activists inside and outside Iran have helped familiarized Iranian society and lawmakers with this new outlook (Afshar, 2016). Similar changes have been reported in other South East Asian countries, India and Thailand in particular (Long, 2004; Misra, 2009). Iranian gay men and women have in fact pushed cultural and political boundaries through their everyday acts of open and covert defiance in a way that resonates with the wider defiance and resistance of women and youth to state-defined norms regarding dressing and dating: “The open display of defiance by the youth, women, and now middle class men is indicative of a coalition among a larger segment of society than the authorities had predicted. At least these events have blurred the lines, and the authorities know it. There is a fissure in Islamic masculinities” (Gerami, 2003: 272).

Footnotes

Notes

Aryan Karimi is a PhD candidate in the Department of Sociology at the University of Alberta. He is a qualitative researcher interested in studying the links between sexuality and gender; race and ethnicity; and refugee and migration among ethnic minorities such as Iranians, Somalis, and Sub-Saharans in Canada, Western Europe, and the Middle-East.

Zohreh Bayatrizi, PhD, is an Associate Professor of Sociology in the Department of Sociology at the University of Alberta. Her research interests include history of sociology, knowledge and power, law and society, sociology of death and dying, sociology of Iran, interconnections of sociological research and social policy.

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