Summary:
In Saudi Arabia, deviating from traditional gender norms is considered a criminal offense under Sharia law. This encompasses various aspects such as social behavior, medical interventions, or surgical procedures to transition. Although there is no explicit legislation on this matter, arrests and severe punishments, including corporal retribution and incarceration, are common. Gender-affirming healthcare is only permitted for intersex individuals, while there is no legal recognition of gender for transgender individuals. The Permanent Committee for Islamic Research and the Issuing of Fatwas strongly opposes gender-affirming care. They outright reject such practices and suggest prayer as a means to alleviate gender dysphoria.
Criminalization:
Defacto: Saudi law is heavily influenced by Sharia and does not possess a codified penal code. Although there is no explicit criminalization of social, medical, or surgical transition in written texts, gender nonconformity is effectively criminalized according to a specific legal article:
المادة الـ 38 للحكم الصادر بالمرسوم الملكي رقم أ/90 وتاريخ 27/8/1412 هـ :
لا جريمة ولا عقوبة إلا بناء على نص شرعي أو نص نظامي
This law opens diverse individuals to prosecution based on Sharia, especially relying on Hadith:
1/1631- عن ابنِ عبَّاسٍ رضي اللَّه عَنْهُما “لَعنَ رسُولُ اللَّهِ ﷺ المُتَشبِّهين مِن الرِّجالِ بِالنساءِ، والمُتَشبِّهَات مِن النِّسَاءِ بِالرِّجالِ” رواه البخاري.
2/1632- عنْ أَبي هُريْرةَ قَالَ: “لَعنَ رسُولُ اللَّه ﷺ الرَّجُلَ يلْبسُ لِبْسةَ المرْأةِ، والمرْأةَ تَلْبسُ لِبْسةَ الرَّجُلِ” رواه أَبُو داود بإسنادٍ صحيحٍ.
Saudi Arabia is currently in the process of enacting its inaugural written penal code. The preliminary version of this legal document purportedly incorporates the explicit prohibition of garments that resemble those typically worn by individuals of the opposite gender (commonly referred to as “crossdressing”), with a prescribed penalty of three years’ imprisonment.
Enforcement:
Even in the absence of explicit criminalizing legislation, Sharia law is enforced in Saudi Arabia, resulting in the apprehension of numerous individuals who identify as transgender on charges related to crossdressing. These arrests are typically documented and disclosed by Saudi authorities and news agencies; however, it remains uncertain as to whether the apprehended individuals themselves identify as transgender or simply exhibit non-conforming gender expressions.
- In 2017: law enforcement conducted a raid at a residential property where a private gathering was being held. As a result of this operation, a total of 35 individuals who identified as transgender were apprehended. Disturbingly, it has been alleged that two of these individuals were subjected to severe and fatal mistreatment, including being confined within sacks, physically assaulted with sticks, and subjected to torture, all reportedly perpetrated by police officers.
- In 2016: the Jeddah penal court registered 60 cases of “crossdressing”. Among these cases, it was brought to attention that two men were accompanied by women deemed “immodest”. Subsequently, it was determined that these women were, in fact, engaging in crossdressing activities, leading to their subsequent trial. Notably, one of the accused individuals, who adopts a female identity on social media platforms, presented a defense centered on her possession of a higher than average level of female hormones. To corroborate this claim, she procured a medical report affirming her hormonal status. As a result of the trial, she was ultimately sentenced to a term of 4 months of imprisonment and a punishment of 100 lashes.
- March 2015: the Jeddah penal court convicted a person with crossdressing and the seizure of illicit drugs, and sentenced them to 1 year and 9 months of jail time as well as 1000 lashes.
- January 15, 2009: 67 people were reportedly arrested on crossdressing charges while attending a party.
- March of 2005: More than 100 men were reportedly arrested on crossdressing charges after attending a party that was raided by police. They were not only sentenced to imprisonment, but also subjected to corporal punishment in the form of lashing.
Legal gender recognition:
There is no explicit reference to the legal recognition of gender for transgender individuals within the text of the legislation. The legal provisions pertaining to modifications in civil status, such as name changes, are rigorously stipulated in accordance with Sharia law.
- Article 27(39) of the Civil Status Regulations (1986) delineates the prerequisites for gender recognition pertaining to individuals who are intersex:
“When changing the gender from male to female or vice versa after registering it for medical reasons, the following steps must be taken:
(a) Submitting a request to change the name and gender of the person concerned, or their guardian;
(b) Proof of gender according to a medical report from a medical committee approved by the Ministry of Health;
(c) After a decision is issued by the competent committee approving the amendment procedure, all amendments shall be made in their civil documents through the cancellation of previous documents by inserting the new modification with a new number and date”.
Case law in Legal Gender Recognition:
No known cases of attempts to obtain legal gender recognition in Saudi Arabia have been found.
Gender affirming healthcare:
Restricted: Gender affirming healthcare is not permitted in Saudi Arabia for transgender people. In fact, it is restricted by the following legal text:
- Article (05) From the Report of the Committee Formed to Study Sex Change Mechanism of the Saudi Ministry of Health:
Cases of gender dysphoria are among the most challenging and complex medical ones. Individuals diagnosed with this condition are the ones who seek sex change procedures the most fervently. However, such procedures or treatments for the purpose of sex change are prohibited. Treatment plans should be formulated on a case-by-case basis by mental health professionals within the Ministry
Fatwas:
Given that Saudi Arabia is predominantly governed by Sharia law, it is essential to reference the Fatwas pertaining to transgender identities and individuals in the kingdom. The Kingdom of Saudi Arabia refers to the Permanent Committee for Islamic Research and Issuing Fatwas, which is presided over by the Grand Mufti of Saudi Arabia.
- Fatwa number 1542: The committee received an inquiry regarding the Islamic perspective on surgical procedures related to gender affirming care. In response, they assert that any form of “sex change” is strictly prohibited as it involves altering God’s creation. However, they further expound that it is permissible to undergo corrective operations with the intention of revealing one’s true sex, particularly in cases of individuals who are intersex.
- Fatwa number 2688: The committee received a query from a transgender woman providing details about her experience of dysphoric feelings and inquiring about the permissibility of seeking care. They sought to convince her that:
- Men are superior to women, suggesting that she has been granted a certain degree of preference due to her male biological makeup.
- Corrective procedures are limited in their ability to enable her to fully embody her identified gender, primarily due to their inability to replicate a fully functional genital system, and they pose risks to the individual seeking care rather than alleviate gender dysphoria.
- If, and only if, there are discernible physical manifestations of femininity, it may be permissible to consider utilizing medical and surgical means to enhance and align one’s outwardly feminine sexual characteristics. However, it is emphasized that this should be approached as a means of “sex correction” rather than a complete “sex change.”
- The solution for gender dysphoria is prayer.