Litigation Degree: Second
Case No: Appeal No 1040/2004 after Case No 861/2003
Issuing Court: Court of Appeals
Judgment: Unfavourable, the Court overruled a previous judgement that allowed legal gender recognition for the plaintiff
Judgment Date: 11/10/2004
Summary:
The plaintiff lodged a lawsuit before a Kuwaiti court seeking to modify her personal information in official records subsequent to gender-affirming surgeries from male to female, on grounds of her gender dysphoria. The court of first instances granted the plaintiff’s request following a forensic medical evaluation. However, the defendants, namely the Ministry of Interior, Health, Education, Justice, Defense, and the General Civil Information Authority, lodged an appeal, which the court accepted on the basis of various arguments challenging the validity of gender dysphoria as a concept.
Facts:
The plaintiff lodged a claim before the Kuwaiti Court of First Instance, seeking a modification of her personal information in official documents to reflect the transition of her gender from male to female, following a surgical procedure on 29/6/2000. Although the plaintiff was assigned male at birth on 3/10/1975, she continued to experience gender identity disorder and consequently chose to live her life as a female. This decision resulted in personal harassment and societal harm. The Court of First Instance issued an interim judgement, referring the plaintiff’s case to forensic medicine for an assessment of her gender. Forensic medicine determined that the plaintiff possessed male genes, but exhibited feminine physical and psychological traits. Based on this forensic medical evaluation, the court concluded that the case was admissible under Islamic sharia law, which permits a gender reassignment only in cases of urgent medical necessity. The court further determined that accepting the plaintiff’s request was in the best interest of society, as it served to preserve public order and morality. However, the defendants – the Ministry of Interior, Health, Education, Justice, Defense, and the General Civil Information Authority – appealed the decision of the Court of First Instance.
Judgment:
The Court of Appeals has ruled in favour of the appeal and has overturned the court of first instance’s judgement on various grounds, which include: 1. The plaintiff possesses male physical characteristics and undergoing surgery to change her sex is in violation of Islamic law, as there is no urgent physical necessity. 2. The plaintiff did not exhibit signs of gender identity disorder during childhood, puberty, or even after being admitted to a psychiatric hospital following a suicide attempt, excluding any other reasons. 3. The plaintiff failed to seek medical consultation regarding her gender identity disorder. 4. Gender identity disorder is still a subject of ongoing investigation and is susceptible to fluctuating opinions, rather than being based on necessary and urgent medical grounds. 5. Changing one’s sex solely due to mental disorders is contradictory to Islamic law, as it leads to obscenity.