Summary:
Kuwait currently criminalizes gender non-compliance and transgender expression by directly applying Article 198 of its Penal Code. Furthermore, the process of legal gender recognition in Kuwait is governed by Sharia law, which effectively restricts access to this service only to intersex individuals, as there have been no reports of transgender individuals utilizing this avenue. Additionally, gender-affirming healthcare in Kuwait is illegal, thus posing additional challenges.
Criminalization:
Explicit: Kuwait employs explicit and implicit criminalization as a means of sanctioning transgender expression. In February 2022, The Kuwaiti Constitutional Court deemed Article 198 of the Penal Code that punishes “the imitation of the opposite sex” as unconstitutional, but only in a broader sense given the legal text’s vague wording and lack of clarity. As such, law enforcement agencies wrongfully continue to use discriminatory articles such as Article 198 as they deem fit.
- Article 198 of the Kuwaiti Penal Code (2007)
“Whoever makes a lewd signal or act in a public place or such that one may see it or hear it from 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 (~$3,000) or one either of these punishments.”
While many celebrated the progress that such a law would bring, the ruling can still have an impact as long as the judiciary considers its limitations as a vague provision when interpreting legal texts. This provision has the potential to impede transgender individuals’ fundamental rights, such as freedom of movement and mobility, and may contribute to physical, sexual, and police abuse, as well as torture endured by them from both state and non-state actors. In addition to transgender expression being criminalized through Article 198, gender affirming healthcare is illegal in Kuwait.
This article could undergo amendments as Kuwaiti Members of Parliament propose new changes that specifically target transgender expression. For instance, one of the suggested amendments proposes defining the phrase “imitating the opposite sex” as:
“Every male who appears dressed in women’s clothing or uses cosmetics in a way that makes him appear as a woman. Every woman who appears in men’s clothing in a way that makes her appear as a male, according to the country’s customs. Anyone who undergoes operations or medical procedures or uses medical drugs to alter their appearance to resemble the opposite sex.”
Enforcement:
- In September 2023, the General Department of the Criminal Investigation conducted a series of widespread arrests in Kuwait, specifically targeting individuals who had violated “public indecency laws.” The focus of these arrests were individuals who identified as transgender or queer, with varying reports from local newspapers on the actual number of arrests mad (31 or 71 people)
- In October 2022, Maha al-Mutairi, a transgender woman from Kuwait, was arrested and charged with the offense of imitating the opposite sex, as stipulated in Article 198 of the Penal Code. She was subsequently sentenced to a two-year imprisonment. It is worth noting that Maha al-Mutairi experienced persistent harassment from the Kuwaiti Judiciary and Security Forces, being arrested and detained on multiple occasions.
- In 2022, the Kuwaiti authorities deported approximately 3,000 non-Kuwaiti citizens who were deemed to have “imitated or resembled women.” This deportation campaign was carried out under the directive of Sheikh Talal Al-Khaled, the First Deputy Prime Minister and Minister of the Interior. Sheikh Al-Khaled aimed to investigate the activities of Kuwaiti residents, citing an increase in the presence of “crossdressers” and the emergence of “suspicious offers and advertisements” that targeted young people.
Legal Gender Recognition:
Access to legal gender recognition in Kuwait is restricted, with no legal pathway for individuals to change their legal gender marker. While changing one’s legal name is technically possible, courts may refuse requests deemed gender non-conforming.
Name Change:
Individuals in Kuwait are permitted to change their legal names through filing a petition at the Kuwaiti Ministry of Justice.
Gender Marker Change:
There is no legal recourse for trans people to change their legal gender markers in Kuwait. As such, changing one’s legal gender marker is not possible. Some individuals have attempted to achieve legal gender recognition through legal action against local courts, but are often rejected as civil or personal status laws for processes like regulating legal gender recognition rely on the Sharia to dictate their verdicts.
Case law in Legal Gender Recognition:
- Case No. 24/1998: Plaintiff Y, a trans man, sought legal recourse from the Court of First Instance and the Court of Appeals to change his name and gender marker on official identification documents. He underwent surgical and hormonal treatments in Egypt, providing reports from his surgeons that confirmed his diagnosis of Gender Identity Disorder and his unsuccessful attempts to treat it through therapy, leading to the necessity of medical interventions. However, both courts found no medical grounds to justify his transition. Furthermore, the Court of Appeal expressed the opinion that the plaintiff’s actions directly went against Islam and nature
- Cases No. 864//2003, Appeal No. 1040/2004, and Appeal No. 674/2004: Plaintiff X, a trans woman,, a trans woman, filed an application with the Kuwaiti Court of First Instance to obtain legal recognition of her gender and to change her name and gender markers on legal documents. The case subsequently progressed through all available levels of litigation within the Kuwaiti judiciary. Initially, the Court of First Instance ruled in favor of the plaintiff’s request, acknowledging that she had successfully managed her Gender Identity Disorder and thus avoided becoming homosexual. However, the Court of Appeals denied her request for Legal Gender Recognition, citing a lack of medical necessity. Following the Court of Cassation’s refusal to reopen the case on the grounds of it contradicting Islamic Law, plaintiff Y decided to submit an appeal. Both the Court of Cassation and the Court of Appeals retain the authority to consider judgments from the Court of Appeal.
Gender Affirming Healthcare:
Restricted, Explicit criminalization: Kuwait amended its medical liability law in 2020 to prohibit medical healthcare professionals from providing all kinds of gender-affirming healthcare for any person seeking to “change an individual’s sex.” Intersex individuals are exempt from these laws, as they may seek out “sex correction” operations specifically from governmental hospitals. However, they must first provide medical evidence to show that they are intersex and not transgender.
- Article (19) of the Law No. 70 of 2020 Regarding the Practice of the Medical Profession & Its Auxiliary Professions & the Rights of Patients & Health Facilities:
It is prohibited to perform all operations, surgeries and medical interventions that may lead to change in the gender of a person, but it may be performed for the purpose of correcting the gender. Such operations shall only be performed in government hospitals affiliated to the Ministry, and in accordance with the following regulations and procedures:
1- That the person’s gender affiliation is ambiguous and there is a suspicion between masculinity and femininity.
2- That they have physical features that are contrary to their physiological, biological or genetic characteristics.
3- That the first and second clauses of this article be verified according to medical reports issued by the Ministry.
4- A written and explicit correction request is submitted by the patient or their legal representative to the Undersecretary of the Ministry of Health, supported by all available documents and reports
5- The approval to conduct this process shall be issued by a medical committee formed by the Minister from three specialised physicians, provided that the chair is at the level of a consultant, and the decision is written and signed by all members of the committee, and includes the specified patient gender and approval of the correction process in accordance with the medical protocols approved in this regard and in the patient’s best interest.
6- The committee must seek the assistance of a psychiatrist to perform the necessary psychological preparation before and after the procedure.
7- The committee shall issue a medical report regarding the patient’s condition and gender within two weeks from the date of the correction surgery, in light of which the official documents are amended and corrected.
8- The Ministry shall issue a correction certificate that includes all the data of the patient’s old birth certificate, indicating his gender before and after the correction surgery, the date of correction, its results, and a summary of decision and report data of the committee. The data of the birth certificate shall be legally recognized by all authorities.
9- The Ministry shall issue the correction certificate referred to in the previous clause within a period not exceeding two months from the date of conducting the correction surgery, and to record all data and procedures that have been carried out in a special record within the Ministry, and indicate the type of correction, its date, and its supporting documents in the patient’s old birth record within the Ministry.
10- According to the certificate of correction referred to in the two previous clauses, an application regarding the change of name shall be submitted to the committee stipulated in Law No. (10) of 2010 regarding Regulation of the Procedures for Lineage claims and the Correction of Names, provided that a suitable name is chosen for the patient, fit for his social class and not repeated among his siblings. The committee issues its decision on the application with brief justifications, and the patient or their legal representative shall be notified of it when following up with the aforementioned committee, which shall deliver an exact copy of the decision to them. In the event of approval to change the patient’s name, the date and wording of the decision shall be published in the Official Gazette.
In parallel, there are currently no known cases of individuals successfully seeking out Gender Affirming Healthcare with the approval of the Kuwaiti Court. Private practices might provide some services for transgender individuals, but many face logistical and legal challenges when attempting to access it. As such, many transgender Kuwaiti individuals seek out gender-affirming healthcare abroad, which might not always be accessible for all people.
Fatwas:
Kuwaiti Islamic authorities have not issued any specific Fatwa regarding transgender individuals. Instead, they generally adhere to the rulings of other prominent Sunni Fatwas, which prohibit gender-affirming healthcare. However, independent Kuwaiti scholars have issued separate Fatwas on this matter, as exemplified by the following:
- Fatwa No. (2008/Sheikh Rashid Saad Al-Alimi): This fatwa describes the cases where gender transitions are permissible under Islamic Law. It distinguishes between two types of people who have the urge to transition: first, people who wish to “imitate the opposite sex by choice,” alluding to those who are also sexually non-conforming and describes their intentions as predatory, and second, those who was born with a brain defect that creates dissonance between the body and the choice. As such, it is permitted for the latter group to transition as God commanded Muslims to seek medical treatment for sickness and naturally occuring sickness, and does not go against Islamic law.
Other:
Decriminalization: Case No. 5/2021: Plaintiff Y was accused by the Kuwaiti Public Prosecution Office of imitating women, which led them to file a lawsuit challenging the constitutionality of Article 198 of the Kuwaiti Penal Code. Initially, the Court rejected Plaintiff ‘s case. However, following an appeal by the plaintiff, the case was brought before the Constitutional Court, which ultimately ruled that the article was unconstitutional in a broader context.