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Case No 5/2021 Constitutional Court – Kuwait

Litigation Degree: Third
Case No: 05/2021 Constitutional 
Issuing Court: Supreme Constitutional Court
Judgement: Favorable, the Court declared articles criminalizing transgender people unconstitutional   
Judgement Date: 26/01/2022

After being accused by the Public Prosecutor of imitating women, plaintiff X filed a claim against the unconstitutionality of article 198, which was rejected by the Court, he then appealed the decision, which led to the return of the judgement to the Constitutional Court, which ultimately ruled that the article was unconstitutional.

The plaintiff filed a claim before the Kuwaiti Constitutional Court against the unconstitutionality of article 198 of the Kuwaiti Penal Code of 1961, according to which anyone who imitates the opposite sex is subject to a maximum of one year of imprisonment and a fine of 1,000 dinars or one of these penalties. This was after the prosecution filed a misdemeanor case No. 565 of 2021 against the plaintiff on the grounds of imitating the opposite sex and was to be punished under article 198. However, the court dismissed the plaintiff’s claim and rejected the argument that the article was unconstitutional. However, the plaintiff appealed this decision to the Constitutional Appeals Examination Committee, which annulled the Court’s decision because of its inadequacy, and the competent Committee also ruled to refer the contested judgement back to the Constitutional Court.

The Constitutional Court ruled on 26/1/2022 that article 198 was unconstitutional on the grounds that the text of the article was interpretable because it contained broad terminology. It was also unspecified from what acts might fall under the act of imitating the opposite sex, which was subordinate to personal viewpoints, which might result in some type of confusion. The Court also invoked article 30, which protects individuals’ personal rights, and article 32, which provides that there is no penalty if there is no law specifying what punishment is and what acts must be punished.

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