Summary:
The United Arab Emirates (UAE) employs various legal mechanisms to explicitly acknowledge and penalize nonconformity with traditional gender roles. Instances of transgender expression, which are characterized by unconventional physical appearances or accessories, frequently result in the apprehension, confinement, or expulsion of non-Emirati tourists and residents. Furthermore, the recognition of legal gender identity is significantly constrained as a result of legislation that limits access to healthcare that affirms gender identity and the lack of a well-defined legal framework concerning changes to one’s name and gender marker. It is worth noting that a recently enacted medical liability law explicitly proscribes any form of healthcare that supports gender identity for non-intersex individuals.
Criminalization:
Explicit: There are several bodies of legal texts that delineate the degree of criminalization pertaining to transgender expression, varying from outright prohibition of such expression to the existence of ambiguous morality laws. For instance, Article 359 specifically addresses the issue of transgender women accessing gender-segregated areas, albeit there have been numerous instances where this particular penal code has been employed to prosecute individuals in public spaces, regardless of their gender identity.
- Article 359 of the United Arab Emirates’ Penal Code (2020):
“Whoever molests a female in an indecent way by words or action in a public road or in a frequented place shall be subject to the punishments of incarceration for no more than one year and fine of no more than AED One Hundred Thousand or one of the two punishments. The same punishment shall apply to any male who enters under disguise to any place allocated for women only or to which the entry of men is forbidden. Should the male commit any crime under such disguise, this shall constitute an aggravating circumstance.”
Alternatively, morality laws may be used as de-facto criminalization of transgender expression in some cases. For example, Article 362 bans the possession and distributions of any media deemed “immoral.” In parallel, Article 361 of the Penal Code also criminalizes “acting immoral” in public spaces or prompting others to do so.
- Article 362 of the UAE Penal Code (2020):
“Whoever manufactures, imports, exports, possesses, acquires or transports for the purpose of exploiting, distributing or displaying to others any writings, drawings, images, films, symbols or other items if they are violating public morals, shall be subject to the punishments of incarceration for no more than one month and a fine of no more than AED One Hundred Thousand or one of the two punishments. The same punishment shall apply to any person who advertises any of the previously mentioned items.”
- Article 361 of UAE Penal Code:
Whoever publicly makes appeals or songs, yelling or speech that is immoral or publicly entice others to indecency in any way whatsoever shall be subject to the punishments of incarceration for no more than one month and a fine of no more than AED One Hundred Thousand or one of the two punishments.
Finally, new laws combating cybercrime in the UAE can also target any information condoning or promoting immoral behavior on any information technology platform, website, or apps.
- Article 24 of UAE Federal Decree-Law no. (5) of 2012 on Combating Cyber Crimes:
“Shall be punished by temporary imprisonment and a fine not less than five hundred thousand dirhams and not in excess of one million dirhams whoever establishes or administer or runs a website or publishes on a computer network or any information technology means which would promote or praise any programs or ideas which would prompt riot, hatred, racism, sectarianism, or damage the national unity or social peace or prejudice the public order and public morals.”
While the law does not explicitly mention transgender or queer existence or expression, it is likely to reference queerness or transgender expression as immoral and therefore within the jurisdiction of this text. For example, the Telecommunication Regulatory Authority in the UAE specifies that it blocks all access to websites that promote “destructive principles such as homosexuality” in their Internet Access Management Regulatory Policy. As such, posts describing queerness to any extent online might be deemed illegal.
Enforcement:
- In 2017, Emirati Security Forces arrested and detained two Singaporean tourists for “looking feminine” in a public mall in Abu Dhabi. Despite the text in Article 359 specifically criminalizing transgender women from entering “spaces reserved for women,” the pair were sentenced to one year of imprisonment under Article 359 of the Federal Penal Law and a law originating from local Abu Dhabi penal law which is now null due to nation-wide changes in legislation. An appeals court converted their sentence to deportation and a monetary fine. They were deported after spending 3 weeks in a prison center designated for “effeminate” people.
Legal Gender Recognition:
Name Change:
Changing one’s legal name is technically possible under UAE law after submitting a petition to a court, as well as receiving approval from one’s home consulate if they are not a UAE citizen. However, by inferring from other prohibitory texts concerning legal gender recognition and access to gender-affirming healthcare, the courts may accept or reject name changes based on societal gender norms.
Gender Marker Change:
The Federal Decree Law Concerning Medical Liability explicitly describes the illegitimacy of any gender transition that is not in accordance with the state’s reasoning as to who should transition and why, mostly focused on a “biological need” such as the characteristics or desires that intersex people might display. As such, those who are permitted to transition medically in the UAE may also gain access to legal gender recognition.
Case law on Legal Gender Recognition:
While the current legislation presents new obstacles for the process of legal gender recognition, the Federal Decree, Law No. 4 of 2016 had more lenient definitions and requirements for both legal gender recognition and access to gender-affirming healthcare. For instance, the law previously stated that individuals could undergo sex reassignment surgery if their “sexual affiliation” or gender identity did not align with their biological and genetic traits. Consequently, many legal professionals argued that a disparity between gender identity and biological characteristics could grant plaintiffs access to gender-affirming healthcare. However, under the new legislation, this possibility no longer exists.
Furthermore, the following lawsuits and petitions that were brought before the Emirati Judiciary are interconnected, albeit at different stages of litigation.
- Case No. Unknown of 2017-2018: In 2017, three Emirati transgender men initiated a legal action against the Abu Dhabi Court of First Instance in order to obtain legal name changes. These individuals had previously undergone gender-affirming healthcare in Europe. The Court responded to their plea by requiring them to undergo evaluation by a medical expert committee appointed by the court. Subsequently, the committee issued reports indicating that the two men had a genuine need for sex reassignment surgery. On January 23, 2018, the court rejected the plaintiffs’ requests to change their legal names and gender markers on official identification documents. In response, the plaintiffs filed an appeal, emphasizing the importance of legal gender recognition for their livelihoods and highlighting the potential risks posed by the court’s rejection. They also requested the appointment of a new medical committee specifically composed of a gender expert and a psychiatrist, in addition to the ordinary psychiatrist who had been present during the previous examination. Ultimately, the court rejected their requests.
- Case No. Unknown of 2019: The same three Emirati trans men from the above court case continued legal proceedings in the Emirati Judiciary so they may receive legal gender recognition. Alongside their identification as individuals with Gender Identity Disorder, they had also undergone some gender-affirming treatment in the United States. After filing their appeal, the Emirati Federal Supreme Court ultimately rejected the final decision in the case.
Gender Affirming Healthcare:
Restricted, Explicit criminalization: Article 1 of the Federal Decree Law Concerning Medical Liability defines the terms sex change and sex reassignment under the framework of Emirati and Islamic Law. This describes who may or may not transition legally in the UAE.
- Article 1 of the UAE Federal Decree Law Concerning Medical Liability (2019):
“Sex Change (Transsexuality): Modifying the gender of an individual with a clearly defined gender identity (whether male or female), whose sexual physical attributes align with their physiological, biological, and genetic characteristics, and whose gender identity is not subject to any questioning (whether male or female). This definition also implies that undergoing a Sex Reassignment Surgery (SRS) in such cases would be deemed an incongruous departure from the gender classification determined by medical evaluations.
Sex Reassignment (Sex Correction): A medical intervention made for correcting the gender of a person whose gender identity is vague and suspicious (whether he/ she is a man or woman), for example, that person has sexual physical features inconsistent with his/ her physiological and biological and genetic characteristics. Moreover, that person’s facial features indicate that he is a male, while in fact he is a female, and vice versa.”
The emphasis on a “deviation from a gender type established by a medical analyses” describes disapproval of any access to gender-affirming healthcare for transgender people who are not also intersex. As such, gender-reassignment can be considered a punishable offense if done domestically without state approval. In parallel, filing a petition to the court requesting a change in one’s legal gender marker on legal identification documents would not be permissible without first gaining approval from the court to transition under specific circumstances.
The Federal Decree Law Concerning Medical Liability also explicitly states that physicians will be punished for providing gender-affirming healthcare, described as sex change surgeries in Article 5. On the other hand, sex reassignment surgeries are regulated through a series of conditions specified in Article 7.
- Section 9, Article 5 of the Federal Decree Law Concerning Medical Liability (2019):
“A physician shall not do any of the following: (9) Perform sex change (transsexuality) surgeries;”
- Article 7 of the Federal Decree Law Concerning Medical Liability (2019):
“Sex Reassignment Surgeries (Sex correction) may be performed according to the following controls:
- The person’s gender identity is obscure and is suspicious about being male or female;
- The person has sexual and physical features inconsistent with his/her physiological, biological and genetic characteristics.
- The provision of Paragraphs (1 and 2) of this Article shall be proven by medical reports and approval of specialized medical committees formed by the Health Authority with the aim of defining the patient’s gender identity and approving the reassignment surgery. The said committee shall refer the case to a psychologist to make the necessary psychological preparation.”
Fatwas:
In addition to a body of text criminalizing transgender identity and expression, the nature of the state’s legislation also involves the opinions of Islamic law.
- Fatwa 94/2013, Requested by the UAE Health Ministry and Issued by the Sharia Committee of the Authority and Confirmed by the General Authority for Islamic Affairs and Endowments: Transitioning as a transgender person who is not intersex is forbidden because it is changing the creation of God, which is strictly forbidden as per Islamic Law. However, transitioning for “correcting” one’s sex is considered appropriate due to the naturally occurring physical defects found in intersex bodies. As such, alleviating confusion about a person’s sexual affiliation is a step toward assigning them as either female or male. This treatment is not considered God’s creation, but rather a medical need like any other, that needs to be treated as per Islamic Law. As such, there are outlined requirements for transitioning:
1. Obtain medical evidence verifying the vague characteristics of a person’s sexual affiliation and confirming their medical need to transition. If their sexual affiliation is deemed ambiguous, they are considered Khuntha and therefore need to correct their sex to maintain normative legal, social, and financial rights.
2. Obtain approval from the appropriate administrative and legal bodies to undergo treatment and alleviate confusion about the person’s sexual affiliation.
- Fatwa 12/MM3, Requested by the Abu Dhabi Health Ministry and Issued by the Chairman of the General Authority for Islamic Affairs and Endowments Provided the Clarifications of the Sharia Committee: The required conditions for permitting gender reassignment surgery: Obtain judicial approval before undertaking gender correction operation:
- If you are a minor with no guardian, the judge will act as this person’s guardian and will guide you in achieving judicial approval.
- If you are not a minor, obtain the approval of the judicial authorities before medically transitioning. As such, be careful not to use any judicial documents illegally or incorrectly and maintain respect for provisions concerning sex corrections.
- A specialized committee of experts (a medical, judicial, sharia, legal, psychological, and administrative procedures expert respectively) grant special permission for each case of gender transition ensuring it complies with the standards of Islamic Law.