LGBT rights in the State of Palestine

Legal status and criminal law

On 18 September 1936, the criminal code of Mandatory Palestine, British Mandate Criminal Code, which drew from Ottoman law or English law,^[2] was enacted. Section 152(1)(b)(c) of the code states that any person who "commits an act of sodomy with any person against his will by the use of force or threats" or "commits an act of sodomy with a child under the age of sixteen years" is liable for imprisonment up to 14 years, while Section 152(2)(b) states that anyone who has "carnal knowledge" of anyone acting "against the law of nature" is liable for a prison term up to 10 years.^[3] Palestinian academic Sa'ed Atshan argued that this criminal code was an example of British export of homophobia to the Global South.^[4] The present applicability of this law is disputed. The Human Dignity Trust states that the criminal code is still "in operation" in Gaza albeit with scarce evidence of its enforcement,^[5] and Human Rights Watch states that the criminal code is still "in force" in Gaza.^[6] Amnesty International does not report same-sex sexual activity as being illegal in any Palestinian territory but emphasizes that Palestinian authorities do not stop, prevent or investigate homophobic and transphobic threats and attacks.^[7] The editor-in-chief of the Palestinian Yearbook of International Law, Anis. F. Kassim argued that the criminal code could be "interpreted as allowing homosexuality."^[8]


The decriminalization of homosexuality in Palestine is a patchwork. On the one hand, the British Mandate Criminal Code was in force in Jordan until 1951, with the Jordanian Penal Code having "no prohibition on sexual acts between persons of the same sex," which applied to the West Bank,^[6] while Israel stopped using the code in 1977.^[9] On the other, the Palestinian Authority has not legislated either for or against homosexuality. Legalistically, the confused legal legacy of foreign occupation – Ottoman, British, Jordanian, Egyptian and Israeli – continues to determine the erratic application or non-application of the criminal law to same-sex activity and gender variance in each of the territories.^[10] A correction issued by the Associated Press in August 2015 stated that homosexuality is not banned by law in the Gaza Strip or West Bank, but is "largely taboo," and added "there are no laws specifically banning homosexual acts."^[11]


In 2018, Human Rights Watch noted that laws in the West Bank and the Gaza Strip include a combination of unified laws passed by the Palestinian Legislative Council and ratified by the President of Palestine, and stated that laws from the former British Mandate, Egypt, and Jordan still apply when unified laws have not been issued. However, HRW added that Hamas has issued separate decrees and has not applied presidential decrees by the President of Palestine.^[12] Also, the organization reported that articles 258 and 263 of the draft penal code, in 2003, for Palestine, contained "provisions that criminalize adult consensual same sex conduct". However, it is not known whether this code, which prohibited sexual intercourse with women who are over 18 in an "illicit manner" with imprisonment, a prison term of up to five years if they are related to the said woman or up to ten years for those who engage in rape, and up to five years in prison for a male who "commits the act of sodomy with another male", was implemented.^[13][12] There have also been attempts by the Gazan legislative body, following Hamas's takeover of Gaza, to "amend or replace the British Mandatory Penal Code" with a proposed change in 2013, including "flogging for adultery" but it did not pass the legislature.^[14]