Introduction:

In 2007, the Kuwaiti National Assembly amended Article 198 of the Penal Code to criminalise “imitating the opposite sex in any way.” This amendment, proposed by MP Waleed Al-Tabtabaei, a well-known Islamist MP associated with the Salafists, aimed to enforce traditional gender norms. With overwhelming support from the members of parliament and the government, the law significantly affected individuals with non-conforming gender expressions (Al Khonaini, 2020; Human Rights Watch, 2012).

Waleed Al Tabtabaie, known for restricting social and personal freedoms under the guise of “protecting Arab and Islamic communities from alien phenomena,” formed a parliamentary committee to study these so-called negative phenomena. Through the  Legislative & Legal Committee, the amendment to Article 198 was voted on unanimously by a majority of parliament members and the government without consulting the medical establishment, constitutional lawyers, religious scholars, and, most importantly, members of the affected community. The entire legislation was vaguely worded and open to interpretation, leading to arbitrary enforcement, sexual violence, humiliation, and severe human rights violations (Al Khonaini, 2020; Human Rights Watch, 2012).

Article 198 of the Kuwait Penal Code reads: “Whoever makes a lewd signal or act in a public place or such that one may see it or hear it from a public place, or appears like the opposite sex in any way, shall be punished for a period not exceeding one year and a fine not exceeding 1000 Dinar or either of these punishments.”

The passage of the amendment to Article 198 in 2007 marked the beginning of a period of increased persecution for individuals with non-conforming gender expressions in Kuwait. Many were criminalised, imprisoned for up to a year, and persecuted. Numerous individuals had to flee the country to avoid persecution. The law created an environment of fear and secrecy, forcing individuals to hide their true identities. This social isolation and stigma exacerbated mental health issues, leading to increased rates of depression, anxiety, and suicidal ideation (Human Rights Watch, 2012).

Legal Cases:

In a case in 2003, a transgender woman applied to change her gender on official documents. She underwent sex reassignment surgeries, and legal representatives presented medical, legal, and religious evidence supporting her claim. She won the case in 2003 in the Court of First Instance, but then lost it on Appeal (Cairo 52, no date,a). Most cases were rejected due to a lack of specialised knowledge among forensic experts and biases among religious officials appointed by the court. For example, in 2015, a transgender man’s case was rejected based solely on a Quranic verse that had nothing to do with the case or the presented evidence. The Quranic verse talks about the devil’s influence in deceiving minds and hearts, as if the transgender man was encouraged by the devil to believe that he is a man (Classified). An earlier case of another transgender man in 1998 also received a similar judgement (Cairo 52, no date,b). 

These decisions, based on unrelated Quranic verses, starkly contrasted with the fatwas issued by various religious authorities. Mufti Ajeel Al Nashmi of Kuwait had issued a fatwa permitting sex reassignment surgeries, aligning with fatwas from other prominent Sunni scholars such as Bin Baz and Al Fawzan from Saudi Arabia  (Al Nashmi, 2011; Al Fouzan, 2016; Bin Baz, 2018). Shia scholars, including Al Khumaini and Kheminae, also permitted transitioning (Khumaini, 2009; Khamenei, 2013). These religious opinions provided a robust argument against the criminalisation of gender expression, yet they were often overlooked or dismissed by the courts.

Additionally, one notable case involved a cis woman persecuted for her short haircut, who won compensation after proving she was not imitating men. Kuwait’s top appeals court ordered the Ministry of Interior (MOI) to pay 4,000 KWD in compensation for her. The Court of Cassation explained that police had arrested the woman “without justification” and charged them with committing a “flawed act violating their duties.” The final verdict comes in response to a contestation filed by the MOI against the compensation ruling earlier issued by an appeals court. Police said the woman was caught in the act of imitating the other sex for sporting short hair and wearing jeans and a T-shirt (Kuwait Local, 2021).

In 2015, a notable case involved a transgender woman who was arrested by the Ministry of Interior and charged with imitating the opposite sex. During the trial, it was revealed that she had undergone sex reassignment surgeries, and the judge ruled in her favour, stating she could not be considered an imitator of women since her physical appearance was consistent with her gender identity. This ruling was significant because it acknowledged her gender identity and the medical procedures she had undergone, leading to her acquittal (Classified).

Healthcare and Social Challenges:

Following the amendment’s passage, obtaining a gender dysphoria medical report became increasingly difficult. The Ministry of Health’s decision to cease dealing with such cases further complicated the situation. Transgender individuals faced significant barriers in accessing healthcare, exacerbating their physical and mental health issues. Healthcare professionals, often lacking training in handling gender dysphoria cases, were unable to provide the necessary support. This lack of access to appropriate medical care led to a decline in the overall health and well-being of transgender individuals in Kuwait . Discrimination in healthcare settings also deterred many from seeking help, further isolating them from essential services (Human Rights Watch, 2012).

In addition to healthcare challenges, transgender individuals faced significant social discrimination. Reports of transgender individuals in public spaces often led to police arrests, reinforcing the stigma and fear surrounding non-conforming gender expressions. This environment of hostility and discrimination made it difficult for transgender individuals to participate in public life, pursue education, or find employment (Human Rights Watch, 2012; Human Rights Watch 2018).

Seeking Fatwas:

The Ministry of Awqaf and Islamic Affairs in Kuwait often issued oral fatwas to individuals seeking religious guidance on transitioning. However, these fatwas were not provided in writing, reflecting the ministry’s fear of societal backlash and opposition from conservative parliamentary members. This lack of formal documentation hindered the individuals’ ability to use these religious opinions in their legal battles, perpetuating the cycle of discrimination and legal ambiguity (Classified).

In 2018, Salah Al-Massad, the head of the Fatwa and Legislation Department in Kuwait, announced a legal opinion clarifying that a male actor performing a female role or vice versa in theatrical productions does not constitute a crime of “imitating the opposite sex” under Article 198 of the Penal Code. This opinion was issued in response to an inquiry from the Secretary-General of the National Council for Culture, Arts, and Letters regarding the applicability of Article 198 to theatrical performances. Al-Massad explained that the ruling is based on constitutional provisions supporting the arts and freedom of expression. He emphasised that such performances are creative acts aimed at conveying messages and values, and therefore fall outside the scope of criminal behavior defined by Article 198 due to the absence of criminal intent. He highlighted that interpreting the law otherwise would contradict constitutional freedoms and the logical legal framework ( Al-Anba, 2018).

Recently, the Fatwa Department at the Ministry of Awqaf and Islamic Affairs settled the issue regarding the washing and shrouding of deceased transgender individuals. This was in response to a request for a fatwa by the Funeral Affairs Department in the Kuwait Municipality to handle such cases according to Sharia law, based on the deceased’s civil ID or their altered gender status (Al Rai, 2024).

The Fatwa Department stated that the decision should be based on the report of a specialised Muslim doctor. If the doctor determines the deceased to be male, then men should wash the body, and if female, then women should do it, regardless of what sex is listed on the civil ID.

Dr. Faisal Al-Awadi, the Director of the Funeral Affairs Department, sought this fatwa after encountering cases where the bodies of transgender individuals arrived at the mortuary. He mentioned that sometimes it is difficult to determine the gender of the deceased due to surgeries, and there have been cases where the appearance caused confusion among those responsible for washing the body.

Al-Awadi posed three questions to the Fatwa Department: the ruling on washing the body of a transgender individual, the appropriate person to perform the washing, and whether women should wash a transgender woman (male to female) or if men should wash the individual based on their original gender, and vice versa.

Detailed Analysis of the Abolition of Article 198:

The abolishment of the section of Article 198 that criminalised “imitating the opposite sex” was a landmark decision by Kuwait’s Constitutional Court in 2022. This decision came about after an individual who was targeted by the police under this law challenged the article as harmful (Fattahova, 2021; Human Rights Watch, 2022).

The constitutional challenge to Article 198 was initiated by an individual who had been targeted by the police for allegedly imitating the opposite sex. Despite the accusations, the individual was not found guilty of imitating the opposite sex, which prompted them to challenge the constitutionality of the law. The case was taken to Kuwait’s Constitutional Court, where the individual’s legal team presented several compelling arguments against the section of Article 198:

1. They highlighted the vagueness of the law, pointing out that it did not clearly define what constituted “imitating the opposite sex.” This lack of clarity left the law open to arbitrary interpretation and enforcement, leading to abuses of power by law enforcement officials.
2. The lawyers argued that Article 198 violated Article 30 of the Kuwaiti Constitution, which guarantees personal freedom. They asserted that the freedom to express one’s gender identity is a fundamental aspect of personal freedom, and criminalising such expression was unconstitutional.
3. The legal team presented religious and cultural evidence to support their case. They referenced religious fatwas from both Sunni and Shia scholars, which considered transitioning permissible. This argument was crucial in a society where religious and cultural norms play a significant role in shaping public opinion and legal frameworks.
4. They presented evidence from previous cases, such as the 2003 ruling by the Court of First Instance, which accepted the change of official documents for a transgender woman—who later lost it on Appeal—and a 2015 ruling where another transgender woman was found innocent of imitating the opposite sex due to her surgeries conforming with her gender identity.
5. They cited reports from human rights organisations about the challenging situation of transgender people in Kuwait, notably the 2012 HRW article “They Hunt Us Down for Fun,” which detailed police persecution and human rights abuses resulting from the vague language of the law. This vagueness gave police officers complete discretion to decide whether a person was imitating the opposite sex.

The Constitutional Court accepted these arguments and ruled in favour of abolishing the section of Article 198 that criminalised “imitating the opposite sex.” The court acknowledged the law’s vagueness and its potential for abuse as well as its incompatibility with constitutional guarantees of personal freedom. This decision was celebrated as a major victory for human rights and personal freedom in Kuwait (Human Rights Watch, 2022).

However, the broader Article 198 still criminalises acts of public immorality, which can be used to target individuals based on their gender expression. This ongoing legal ambiguity continues to pose challenges for the transgender community in Kuwait (Noralla, 2023; CCKWT, 2023).

Continued Challenges:

Despite the abolition of the specific provision, individuals with non-conforming gender expression are still persecuted under public immorality laws. In July 2023, the Ministry of Interior mandated that anyone found imitating the opposite sex at a police station be interrogated rather than assisted, highlighting the need for continued legal reforms and advocacy. The persistence of public immorality laws underscores the necessity for broader legal reforms to protect individuals from discrimination and abuse (CCKWT, 2023).

The continued enforcement of public immorality laws against individuals with non-conforming gender expression underscores the need for comprehensive legal reforms. These laws provide a loophole for authorities to continue persecuting transgender individuals, perpetuating fear and discrimination. The Ministry of Interior’s decision to interrogate rather than assist individuals found imitating the opposite sex at police stations exemplifies the ongoing challenges faced by the transgender community in Kuwait (Noralla, 2023; CCKWT, 2023).

To address these challenges, it is essential to advocate for the complete decriminalisation of gender expression and to ensure that legal protections are extended to all individuals, regardless of their gender identity. This includes revisiting the remaining sections of Article 198 and related laws that continue to enable discrimination and abuse.

Issues with Gender Identity Document Changes:

Many cases of gender identity document changes were rejected by non-specialised forensic experts or religious officials appointed by the court, indicating the need for a specialised medical committee. Fortunately, Kuwait’s 2020 medical practices law includes Article 19, outlining procedures for gender-conforming therapies. The law specifies the formation of a medical committee including specialised doctors to evaluate and approve gender-conforming therapies. Although the law exists, no individual has applied to be evaluated by this committee (Ministry of Health, 2020).

With the recent dissolution of Parliament and its suspension for four years, there is an opportunity to work directly with the Ministry of Health without parliamentary interference. This period could be utilised to establish the medical committee and streamline the process for individuals seeking gender identity changes (Alarabiya News, 2024).

Article 19 of the medical practices law states the following:

1. The individual’s gender must be ambiguous or their physical characteristics must contradict their physiological, biological, or genetic traits.
2. Verification of these conditions must be supported by medical reports issued by the Ministry of Health.
3. The individual or their legal representative must submit a written request for gender correction to the Undersecretary of the Ministry of Health, accompanied by all relevant documents and reports.
4. Approval for the surgery must be granted by a medical committee formed by the Minister of Health, consisting of three specialised doctors, including a consultant who will chair the committee.
5. The committee must consult with a psychiatrist to provide the necessary psychological preparation before and after the procedure.
6. A medical report on the patient’s condition and gender must be issued within two weeks after the surgery, based on which official documents will be amended.
7. The Ministry is required to issue a correction certificate within two months of the surgery, detailing the individual’s gender before and after the procedure, the date of the correction, and a summary of the committee’s decision.
8. This certificate is legally valid for establishing gender and is considered supplementary to the birth certificate.
9. Based on this certificate, a request to change the individual’s name can be submitted to the committee responsible for handling name and lineage correction procedures as per Law No. 10 of 2010. The committee’s decision on the name change will be published in the official gazette.

Future Steps:

To assist individuals applying to the medical committee, it is crucial to provide legal, medical, and religious resources. This support could include funding and guidance to help individuals navigate the application process successfully. The establishment of a medical committee as outlined in Article 19 of the 2020 law will be a critical step forward. Providing comprehensive support to the first applicants will set a precedent and pave the way for others. 

Moreover, ensuring that the Ministry of Health is fully equipped and prepared to handle such applications is essential. This includes training healthcare professionals on gender dysphoria and the specific needs of transgender individuals. Establishing clear guidelines and protocols for the committee will also help streamline the process and ensure that applications are handled efficiently and fairly.

Additionally, legal support will be crucial in helping individuals prepare their cases and navigate the bureaucratic processes involved. This includes gathering necessary medical reports, submitting applications, and representing individuals in any legal proceedings.

Finally, religious support can play a significant role in providing individuals with the backing they need to navigate societal and familial pressures. This includes working with religious scholars who support gender-conforming therapies to provide written fatwas and public statements of support.

Conclusion:

The abolition of the section of Article 198 that criminalised “imitating the opposite sex” is a significant milestone in the fight for gender rights in Kuwait. However, the continued enforcement of public immorality laws and the challenges faced in changing gender identity documents highlight the ongoing struggles for the transgender community. Comprehensive legal reforms, establishment of specialised medical committees, and support from religious, medical, and legal entities are crucial steps forward in ensuring the rights and well-being of transgender individuals in Kuwait.

A Prior Version of This Article Was Orgininally Published on White Tent Platform.

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*Classified references are only available upon formal request.