CAIRO – Kuwait’s Constitutional Court on Wednesday overturned a law the authorities had used to prosecute transgender people, saying the law violates Kuwaitis’ right to personal liberty. Activists hailed the decision as a milestone for transgender rights in the Middle East.
The law, known as Article 198, criminalized “imitation of the opposite sex” and gave the Kuwaiti authorities a free hand to stop, arrest and prosecute anyone whose appearance did not match the gender on their official identity card.
Transgender Kuwaitis and Kuwaiti activists say police often detain transgender people at security checkpoints after checking their papers, sometimes for little more than a male who has what officers consider a female voice. They say the police often sexually harass or physically attack them during interrogation and then lock them up.
Wednesday’s ruling was a rare advance for sexual rights in a region where gay or transgender people are usually treated as such, though not specifically against the law. In most Arab countries, traditional attitudes toward gender norms merge with strong religious beliefs to make sexual variation largely taboo.
A tiny, oil-rich city-state on the Persian Gulf with slightly more open politics than its authoritarian neighbors, Kuwait isn’t exactly a frontrunner for the region’s sexual freedoms.
Still, Lynn Maalouf, Amnesty International’s Deputy Middle East and North Africa Director, hailed the verdict as a “major breakthrough”. However, she called on Kuwait to ensure the law is completely repealed and to end the practice of arbitrary arrests of transgender people.
“Article 198 was deeply discriminatory, too vague and should not have been included in the law at all,” she said in a statement on Wednesday.
The law was passed in May 2007, when Kuwait’s National Assembly amended the Penal Code to criminalize “indecent” gestures in public and impersonating the opposite sex, punishable by up to a year in prison and a fine.
Thirteen years later, it sparked controversy beyond Kuwait’s borders when a Kuwaiti transgender influencer posted on social media a series of Snapchat videos accusing police officers of arbitrarily detaining her for seven months under Article 198 in 2019 . She was held in a men’s prison and officers raped and beaten her, she said.
“All because I’m trans?” the woman, Maha al-Mutairi, cried in one of the videos, accusing police officers of repeatedly berating her for “mimicking the opposite sex” despite trying to impersonate hers to bow to demands by having her hair cut short, her breasts bound, and dressed in a dishdasha, the traditional white robe worn by men in the Gulf.
“God made me this way,” she said. “I wish I felt like a man deep down. I would pay anything in the world to feel like a normal man. Why are you doing this to me?”
The videos earned Ms al-Mutairi a subpoena from the authorities. But they also spurred some Kuwaitis to defend them, leading to an international condemnation of Article 198.
But in October, a court sentenced Ms. al-Mutairi to two years in prison and a fine, citing Article 198 and a telecommunications law. She is now being held in a men’s prison again, Amnesty International said.
But the case of Ms al-Mutairi, as well as that of many other transgender Kuwaitis, helped spur transgender activism in the country, and the Constitutional Court agreed to challenge the law in December.
Transgender rights do not exist in the Middle East. Islamic authorities in Egypt and Iran issued fatwas authorizing transitional operations in the 1980s. And while transgender people are not explicitly mentioned in the Qur’an, some Muslim religious scholars have suggested that they were simply born in the wrong body.
But in practice, even transgender people who have undergone surgery face enormous difficulties in obtaining legal recognition of their identity. Although only Oman directly prohibits transgender people from expressing their identity, laws are often interpreted to allow authorities to target transgender people. For example, several other Arab countries prohibit men from wearing women’s clothing to enter women-only areas.
Discrimination is also widespread. Because transgender Kuwaitis do not have the ability to change their legal gender, most face difficulty accessing medical care, housing, jobs or services that require their ID.
Many transgender women dress like men and hide their hair to avoid scrutiny, but are still arrested simply because they have feminine-sounding voices or smooth skin, according to activists, transgender women and research compiled by Human Rights Watch. Of the 40 transgender women Human Rights Watch interviewed in Kuwait in 2011, 39 said they had been arrested under Article 198, some as many as nine times.
Shaikha Salmeen, a lawyer and activist who has worked on Ms al-Mutairi’s case and the campaign against Article 198, said Wednesday’s ruling was a step “in the right direction”.
“It was unconstitutional and nobody can doubt it,” she said, adding that she still expects a backlash from Conservatives. “Their resistance will certainly be vicious.”
