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Appeal No 674/2004 – Kuwait

Litigation Degree: Third after cases Nos 861/2003 and 1040/2004
Case No: 674/2004
Issuing Court: Court of Cassation
Judgment: Unfavorable, the request for legal gender recognition was denied
Judgment Date: 20/03/2006

The plaintiff (X) (who wishes to change her gender from male to female) lodged an appeal with the Kuwaiti Court of Cassation in 2004 against the decision of the Court of Appeal, which determined that there was no immediate necessity for the plaintiff to change her gender from male to female and consequently refused to amend her official records to reflect her current gender. The appeal was submitted following the Court of Appeals’ disregard of the request for the alteration of personal information, as well as the Court’s refusal to reexamine the case, resulting in a flaw in the judgment. However, the Court of Cassation dismissed the appeal on the grounds that the disregard was intentional and not due to omission or error, and that the Court was within its rights to issue a final judgment on the case without considering it for reexamination. The defense is also entitled to refuse the reexamination of the case, as is the right of the court. Furthermore, the Court found that there was no immediate necessity for the plaintiff to change her gender due to the conflict with Islamic sharia law regarding the alteration of one’s gender from male to female or vice versa. Additionally, there were no medical reports indicating that the plaintiff experienced gender identity disorder, and no medical guidance was sought prior to undergoing gender-affirming surgeries, thus the court dismissed the appeal.

The plaintiff (X) was born on 3/10/1975 but has experienced gender identity disorder throughout her life. Consequently, she underwent surgery to transition from male to female on 29/7/2000. As a result, she sought to update her gender on official documents. The Court of First Instance in Kuwait accepted her request and granted her legal recognition of her gender. However, the Ministry of Interior, Health, Education, Justice, Defense, and the General Civil Information Authority appealed the decisions, leading to the Court of Appeals overturning the initial judgment and denying the plaintiff’s request for legal gender recognition. Subsequently, the plaintiff appealed the decision of the Court of Appeals to the Court of Cassation. In her argument, the plaintiff cited four reasons: 1. An error in the application of Law 2. An error in reasoning 3. The Court mixed up the facts of the case by basing its decision on the plaintiff’s gender-affirming surgeries rather than an urgent medical necessity as recognized by Sharia law 4. The Court refused to inform the applicant of the documents submitted by the Court of Appeals against her during the hearing on 7/9/2004 and also denied her the opportunity to participate in the proceedings. The Court of Cassation dismissed her appeal on 11/10/2004.

The Court dismissed the appeal on several grounds: 1. The prohibition of a person changing their sex in accordance with Islamic Sharia law. 2. The applicant’s situation was not deemed urgent as there was no risk of self-harm. 3. The plaintiff’s argument of having a psychiatric disorder was contradicted by their brief stay in the psychiatric clinic on 15/1/1994 and the absence of a clinic report confirming the disorder. 4. The applicant still possesses male reproductive organs even after undergoing surgery. 5. The Court of Appeals had the legal authority to reject the plaintiff’s request for access to the documents of the opposing parties, and to determine the distribution of those documents and refuse to provide them to certain individuals. Furthermore, the Court was entitled to take possession of the case and dismiss the plaintiff’s plea. 6. The plaintiff should address their claim of omission regarding the prohibition of sex change to the Court of Appeal. However, it is evident that the Court acted deliberately and with awareness. The judgment remains valid, as it aligns with the law and can address the omission without requiring any amendment to the judgment.

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