Kuwait strikes down law criminalizing trans people in rare LGBTQ+ rights victory

A Kuwait court has repealed a law used to criminalize trans people in what advocates say is a landmark decision.

In a Feb. 16 ruling, Kuwait’s constitutional court ruled that Article 198 of the country’s penal code, which bans “imitation of the opposite sex,” is unconstitutional. The court claimed the statute was too ambiguous and said it was “inconsistent with the constitution’s keenness to ensure and preserve personal freedom,” according to reporting by the Associated Press.

International human rights advocates commended the ruling, with Amnesty International calling the verdict “a major breakthrough for transgender rights in the region.”

“Article 198 was deeply discriminatory, overly vague and never should have been accepted into law in the first place,” Lynn Maalouf, Amnesty International’s Middle East and North Africa deputy director, said in a statement. “The Kuwaiti authorities must now ensure that Article 198 is repealed in its entirety.”

Under Article 198, Kuwait authorities were permitted to arrest and prosecute people if their appearance or dress was different from the gender listed on official identification cards. The 2007 statute, which aimed to criminalize “indecent” gestures in public, targeted physical appearance without any specific criteria for what would constitute a violation of the law.

Those uncertainties led to the harassment, arrest and abuse of trans people by police in Kuwait, as Human Rights Watch (HRC) reports. Any individual found guilty of contravening Article 198 faced a sentence of up to one year in prison, as well as a fine.

Trans women in Kuwait reportedly experienced severe physical, sexual and emotional abuse under the law. A 2012 investigation by HRC found that trans women were being arrested even while presenting as male and wearing traditional men’s clothing in order to avoid persecution. Police based the arrests on characteristics including a “soft voice” or “smooth skin,” said respondents interviewed for the report.

In addition, trans Kuwaitis detailed the abuse they faced while in detention, including sexual humiliation, verbal taunts and intimidation. Some said they were paraded naked around the police station and forced to dance for officers, while others described being blackmailed by police for sex and threatening them with arrest if they didn’t comply. 

In many of the cases, the mistreatment went unreported for fear of retribution.  

One trans Kuwaiti targeted under Article 198 was Maha al-Mutairi, a 40-year-old woman sentenced to two years in prison last October and given a fine for “imitating the opposite sex” online. She has since been released on appeal. 

According to al-Mutairi, she has been arrested six times because of her trans identity. In June 2020, al-Mutairi was reportedly summoned by authorities after she posted videos on Snapchat saying she was raped and beaten at a men’s prison where she had been detained for seven months in 2019 for violating Article 198. Her videos went viral, sparking an outcry against the Kuwait government’s treatment of the trans community.

The constitutional court agreed to a legal challenge against Article 198 in December.

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) said the statute’s repeal is “a step forward in the right direction,” adding that authorities should release all who where previously detained under Article 198. 

“The Kuwait authorities must ensure that those who were previously charged and arrested under this discriminatory law are released and all charges against them are quashed,” Henry Koh, executive director of ILGA Asia, said in a press release. “We hope that the ruling will have a far-reaching impact on the rights of LGBTIQ individuals in Kuwait and in the region.”

Activists remain cautious, however, about what this ruling means. “We are concerned the Kuwaiti parliament might amend the inordinately vague law by adding a clear and much more restrictive article which heavily restricts the freedom of trans women in Kuwait,” M, an activist based in Kuwait, said in a statement to ILGA Asia. 

For now, M and other activists are celebrating the decision. “We are ecstatic, a heavy rock has been lifted off our backs,” they said.