Mounir Baatour, a prominent Tunisian lawyer and human rights advocate, has been at the forefront of the fight for LGBTQI++ rights in Tunisia. As the founder and lawyer of the association Shams, which defends individual freedoms and supports LGBTQI++ individuals, Baatour has continuously challenged the legal and societal structures that oppress non-heteronormative identities.
In the letter below, addressed to the European Commission, Baatour sheds light on the ongoing violations of human rights faced by LGBTQI++ individuals in Tunisia. These include the use of degrading anal tests, the lack of fair access to justice, the breach of personal privacy by law enforcement, and the sweeping criminalization imposed by Article 230 of the Tunisian Penal Code.
This letter is both a denunciation of systemic injustice and a call for international accountability. It is a crucial document for understanding the urgent need for legal reform and protection of LGBTQI++ lives in Tunisia.
To help readers grasp the gravity and context of each issue raised, we will present and discuss the letter part by part, offering insight and commentary along the way.
To the European Commission’s Attention
Subject: Criminalization of LGBTQI++ Communities in Tunis
“Shams” is an association that defends the individual rights of LGBTQI++ individuals, fights against homophobia and transphobia, and provides psychological support and reintegration services to LGBTQI++ people. The focus of its work is particularly centered on the fight for the annulment of Article 230 of the Penal Code, which penalizes homosexuality, and on enforcing Article 21 of the Tunisian Constitution, which guarantees individual freedoms and rights, as well as the right to equal treatment before the law without discrimination.
The issues we wish to bring to the European Commission’s attention are the following:
Anal Tests
The practice of anal testing is used by the police to « prove » the homosexuality of a suspect. This practice is not only aberrant but also violates all the rights and freedoms that the Tunisian Constitution aims to protect.
A particular reference must be made to Article 27 of the 2022 Tunisian Constitution, which affirms the State’s duty to respect the physical and moral integrity of every individual and explicitly prohibits all forms of torture. Forced anal examinations, conducted without consent and under coercion, constitute a clear violation of this article.
Despite these constitutional protections, the practice continues due to the legal basis provided by Article 230 of the Tunisian Penal Code, which criminalizes consensual same-sex sexual relations with up to three years of imprisonment. Courts still admit the results of these so-called tests as evidence, despite their lack of scientific credibility and deeply invasive nature.
Additional legal provisions highlight contradictions in Tunisia’s legal framework:
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Article 224 of the Penal Code penalizes « ill-treatment » and affirms protections for human dignity and bodily integrity—principles directly violated by forced anal tests.
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The Law on Police Use of Force (2015) prohibits unlawful violence by law enforcement and provides penalties of up to five years, though it is rarely enforced in cases involving LGBTQI++ individuals.
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In 2017, the Tunisian National Council of the Medical Order officially opposed forced anal and genital examinations, declaring them « degrading, discriminatory, and unscientific. » They urged medical professionals to inform individuals of their right to refuse the procedure.
International bodies have echoed this condemnation. The UN Committee Against Torture, Human Rights Watch, and Amnesty International have all classified forced anal exams as a form of torture and condemned them as violations of the Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR). Despite a 2017 pledge by Tunisian authorities to end the practice, reports continue to document its use.
These tests are performed arbitrarily, lack scientific validity, and constitute sexual abuse. They reflect a broader system of institutional violence against LGBTQI++ individuals and must be unequivocally condemned and abolished.
Access to Justice for LGBTQI++ People
For LGBTQI++ individuals in Tunisia, access to justice is fundamentally flawed and deeply discriminatory. When victims of violence, abuse, or public humiliation attempt to seek legal protection, they are often themselves prosecuted for homosexuality under Article 230 of the Tunisian Penal Code, effectively turning victims into accused persons.
This legal paradox reflects a broader failure of the Tunisian justice system to uphold constitutional rights. The 2022 Constitution guarantees equal protection before the law. Article 23 enshrines the right to a fair trial and judicial independence, and Article 27 reaffirms the State’s obligation to protect individuals from torture and degrading treatment. Yet in practice, these provisions are routinely undermined in cases involving LGBTQI++ individuals.
One emblematic case occurred in November 2018, when two men in Monastir brutally assaulted a young man believed to be gay. According to reporting by Human Rights Watch, the assailants were released by the court of first instance, while the victim was prosecuted under Article 230. This reversal of justice is symptomatic of the broader legal culture where sexual orientation is itself treated as a crime.
Worse still, those arrested are frequently subjected to « conversion programs » while in prison—unofficial psychological or religious “rehabilitation” efforts that are both harmful and coercive. These practices, though not codified in law, are tolerated and sometimes encouraged within detention systems, violating international standards set by the Yogyakarta Principles and Tunisia’s obligations under the International Covenant on Civil and Political Rights (ICCPR).
This systemic injustice perpetuates a climate of fear and silence for LGBTQI++ individuals, deterring victims from reporting violence and further emboldening abusers. It is a justice system in which the law is not a shield, but a weapon.
Privacy Policy (Phone, PC) by the Police
The 2022 Tunisian Constitution provides explicit protections for personal data and the right to privacy. Article 55 affirms that “private life is inviolable,” and no search, seizure, or surveillance may occur without judicial authorization. However, these constitutional guarantees are systematically disregarded in cases involving LGBTQI++ individuals.
In practice, the police often conduct arbitrary and invasive searches of mobile phones, laptops, and personal devices without a warrant or the individual’s consent. These digital investigations are frequently used to collect so-called “evidence” of homosexuality, such as photos, private conversations, or affiliations with LGBTQI++ groups like Shams, which advocates for LGBTQI++ rights in Tunisia.
One documented case involved a judge basing a conviction solely on the presence of the Shams logo on a defendant’s laptop. Similar abuses have been reported, where the mere possession of images or videos deemed “homosexual” has led to arrest and prosecution under Article 230 of the Penal Code.
This conduct is in direct violation of international standards such as Article 17 of the ICCPR, which protects against arbitrary or unlawful interference with privacy, and guarantees the right to the security of personal correspondence and digital data.
Moreover, the African Commission on Human and Peoples’ Rights affirms in its 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa that individuals have the right to privacy in digital communications. Tunisia, as a party to the African Charter, is bound by these standards but continues to flout them in its treatment of LGBTQI++ citizens.
These actions represent not only a breach of constitutional law but also a systematic pattern of digital surveillance and criminalization, weaponized specifically against LGBTQI++ individuals. The unlawful use of personal data as prosecutorial evidence must be urgently addressed if Tunisia is to align its practices with its own legal commitments and international human rights obligations.
Criminalization of Homosexuality and Not of Sodomy
Article 230 of the Tunisian Penal Code was introduced during French colonial rule in 1913 and has never been revised. The article criminalizes sodomy, punishable by up to three years of imprisonment. Legally, sodomy refers to anal sexual acts, regardless of the genders involved. However, in practice, Tunisian courts have interpreted and applied Article 230 almost exclusively to homosexual relationships, effectively criminalizing LGBTQI++ identities and not just specific acts.
This broad and biased interpretation ignores the fact that heterosexual individuals engaging in the same acts are not prosecuted. Instead, the law is enforced as a tool to target non-heteronormative individuals, especially men perceived to be gay and trans persons whose appearance does not conform to gender expectations.
Additionally, while the term “sodomy” should technically apply regardless of gender, the criminalization is used to suppress non-reproductive, non-normative sexual relationships, and to equate all homosexual behavior with criminal conduct.
Further compounding the issue is the frequent misuse of public decency laws to penalize LGBTQI++ individuals. Although Tunisia no longer formally relies on Articles 226 and 226 bis, authorities often apply vague moral and behavioral standards through other frameworks. For example, Law No. 2004-5 on Public Order and police regulations tied to “preserving social norms” are occasionally invoked to arrest individuals based on clothing, appearance, or demeanor deemed “inappropriate.”
Shams’ legal team has represented numerous clients, including transgender and gender non-conforming individuals, who were charged solely for wearing clothes that do not align with traditional gender roles. These cases are often used as circumstantial evidence to invoke Article 230, reinforcing discriminatory stereotypes and enabling legal persecution based on gender identity and expression, rather than any alleged sexual act.
In such cases, Tunisia violates its obligations under several international agreements, including the African Charter on Human and Peoples’ Rights and the Yogyakarta Principles, which call for the decriminalization of consensual same-sex conduct and protection of gender expression.
To this day, the legal conflation of homosexuality with criminal behavior, enabled by Article 230 and supplemented by other public order frameworks, continues to sustain a culture of fear, repression, and marginalization for LGBTQI++ people in Tunisia. Repealing these provisions and reforming the judicial interpretation is essential to achieving equality and justice.
We call on the European Commission to take urgent and concrete measures, including:
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An immediate end to all forms of financial support to the criminal regime of Kais Saied, which continues to violate fundamental rights and persecute LGBTQI++ individuals.
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Public condemnation of the use of forced anal tests and the criminalization of homosexuality in Tunisia.
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Diplomatic pressure on Tunisian authorities to repeal Article 230 of the Penal Code and to comply with international human rights obligations.
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Support for civil society organizations in Tunisia that are working to defend human rights and provide protection to vulnerable communities.
We submit the following parts to your attention and we hope you will consider measures in this regard.
Cordial greetings,
Mounir Baatour
Lawyer at the Court of Cassation
Legal representative and founder of Shams Association
Lawyer registered with the Marseille Bar
Human Rights Activist & Advocate for LGBTQI++ Rights
📍 Office Address: 1 Rue Jean-Baptiste Fortuné-Lavastre, 13001 Marseille, France
🌐 www.baatour-avocat.fr