LGBT rights in Afghanistan

The Penal Code of 1976 was reinstated after the U.S. operation in the region, and it has several provisions that could apply LGBT people.

• Article 398 – Offers lesser punishment for vigilante honor killings, which may involve a family member discovering their spouse or kin engaging in adultery, fornication or homosexuality.
• Article 427 – Prescribes long prison terms for adultery and pederasty, the latter may be interpreted as including sodomy, in light of the fact that there are still legal punishments prescribed even if the people involved are legal adults. The maximum punishment increases if victim is under eighteen years of age, if the defendant is in a position of authority over the victim, if the defendant has repeatedly committed the crime or if the crime results in the spread of a disease. The law also increases the available punishment if a "violation of honor" takes place.
• Article 512 states that a person who is engaging in public "watching" in a repugnant manner shall be imprisoned or fined.

This Penal Code has been replaced by the Penal Code Of 2018.[5]

The Constitution stipulates that Afghanistan is an Islamic republic, so it is possible for LGBT people in Afghanistan to be charged with violating Shariah law. This could happen in lieu of, or in addition to charges being brought under the penal code. Shariah law based punishment is more likely to occur in isolated, rural communities where private citizens and vigilant groups seek to punish anyone who does not follow strict Islamic morals.

In the cities, persons convicted of homosexuality are generally sentenced to prison. In 2004, an American advisor to the Afghanistan government was arrested and sentenced to a prison sentence for homosexual activities with an Afghan man. Other news reports have also noted that other men have been imprisoned for such engaging in same-sex sexual behavior.[6]

Al-Qaeda

Territory controlled by Al-Qaeda is ruled by a strict interpretation of Islamic or Sharia law. All sexual behavior outside of a lawful Islamic marriage is illegal, with the maximum punishment being death.

Islamic State of Iraq and the Levant

Taliban

When the Taliban gained control of the country in the 1990s they criminalized all sexual relationships outside of the heterosexual marriage, and would often publicly execute men and women for committing fornication and adultery and for engaging in sodomy.

In 1994, the Taliban supreme leader, Mullah Omar, saved a boy from being sodomized by two feuding generals in Kandahar and when he was subsequently given control of the city he decreed that both violent and mutually consensual sodomy would be capital crimes.[7]

Militia members generally do not have access to women, so boys are sometimes kidnapped to be humiliated and raped by adult men.[14] Other boys become prostitutes for adult men, regardless of their sexual orientation.

These men involved are sometimes called bacha bazi in Persian and seem to flourish in the big cities of Afghanistan, possibly due to poverty and the strict social taboos surrounding interaction between men and women. A law has been enacted prohibiting Afghan soldiers from having their "ashna" live with them.[15]

In 2007, reports stated that the practice of bacha bazi is still prevalent in parts of northern Afghanistan. This practice involves teenage boys being dressed in women's clothing and made to participate in dance competitions and engage in sexual acts.[16]

Prior to 2003, little or no HIV-AIDS education or treatment existed. As of 2008, the official number of people living with HIV-AIDS is 504, although the actual number is suspected of being higher, possibly in the thousands.[17] Low literacy rates, weak infrastructure and traditional social mores make it difficult to introduce comprehensive public health education initiatives.

Thus far, the bulk of the available resources have focused on fighting drug addiction and, to a lesser extent, the commercial sex industry.[18] Yet, what little is reportedly being said about sexuality is in the promotion of abstinence-only sex education programs.[18]

In 2009, the first HIV-AIDS treatment center opened up in Kabul, with more clinics promised to open soon. Access to anti-retroviral drugs is, at best, limited and preventive initiatives often conflict with deep-rooted taboos.[19] Efforts are being made to educate local and religious leaders in the hopes that they can legitimize greater public education.[19]

Legally, Article 373 of the Afghanistan criminal code stipulates that a person that spreads a "dangerous disease" by accident shall be fined, but if the disease results in death or permanent disability the punishment shall be the same as if it were an accidental murder.

Article 32 of the Afghanistan Press Law Edict (2002) prohibits publications from promoting "incitement to depravity." Likewise Article 27(D) of the Afghanistan Postal Law (1973) prohibits the usage of the postal service to exchange material that is "repugnant to public decency and morals." These two provisions could be used to censor the distribution of materials advocating LGBT rights or the general topic of sexual orientation and gender identity issues.

In 2009, an Afghan man named Hamid Zaher published his memoir titled, "It is your enemy who is dock-tailed". In the book, Zaher talks about growing up gay in Afghanistan, and how he eventually had to leave his country to avoid anti-gay discrimination. Because the memoir deals with homosexuality and is critical of homophobia, it cannot be distributed in Afghanistan itself, and Zaher's family has cut off all contact with him.

In 2017, the United States Department of State reported the following, concerning the status of LGBT rights in Afghanistan:

• "Discrimination against persons with disabilities and ethnic minorities and discrimination based on race, religion, gender, and sexual orientation persisted with little accountability."[20]
• Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
  "The law criminalizes consensual same-sex sexual conduct, and there were reports of harassment and violence by society and police. The law does not prohibit discrimination or harassment based on sexual orientation or gender identity. Homosexuality was widely seen as taboo and indecent. Members of the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community did not have access to certain health services and could be fired from their jobs because of their sexual orientation. Organizations devoted to protecting the freedom of LGBTI persons remained underground because they could not legally register with the government. Members of the LGBTI community reported they continued to face discrimination, assault, rape, and arrest by security forces and society at large."[20]