Victory for trans rights in Kuwait as unconstitutional law removed

The Kuwaiti Constitutional Court has overturned a law criminalising the “imitation of the opposite sex” in what is a massive victory for trans rights.

Article 198, which improperly persecuted trans people, was overturned after a 40-year-old trans woman, Maha al-Mutairi, first challenged the law on the 29th of December 2021.

The Kuwaiti Constitutional Court Article 198 of the country’s penal code, which has been in place since 2007, criminalised the “imitation of the opposite sex” and violated the personal liberty of its trans community.

Imprisoned Kuwaiti transgender woman, Maha al-Mutairi.

The law was ruled unconstitutional on the basis that it conflicted with Article 30 of the constitution, which guarantees personal liberty for all Kuwaiti citizens. Good call, we reckon.

Further, Article 198 was deemed illegitimate on the grounds of being too broad to “legally determine a sinful act, and what is an imitation of the opposite sex and what is not”.

Article 198, which was amended in 2007 to prosecute anyone imitating the opposite sex, with punishment including imprisonment of up to a year, and/or a fine of up to 1,000 Kuwaiti dinars or $3,300 AUD, originally read as:

“Whoever makes a gesture or an indecent act in a public place, so that someone makes a gesture or an indecent act in a public place, so that someone who is in a public place sees or hears it, that imitates the opposite sex in any way, shall be punished by imprisonment for a term not exceeding one year and a fine not exceeding 1,000 dinars, or one of these two penalties.”

 The judges said the article failed to specify clear, objective criteria upon which to fairly enforce the law.

The articles which left “authorities in charge of applying it according to their discretion and without any control to restrict them”, was deemed problematic and unconstitutional, in that it “contradicts the keenness of the constitution to guarantee and preserve personal freedom”, the ruling judges said.

Lynn Maalouf, Deputy Director of Amnesty International’s Middle East and North Africa sector, said:

“The Kuwaiti authorities must ensure that Article 198 is repealed in its entirety. They must also immediately halt arbitrary arrests of transgender people and drop all charges and convictions brought against them under this transphobic law”.

“All those unjustly imprisoned under Article 198 must now be released, including Maha al-Mutairi who was arrested solely for being a transwoman. The authorities must also investigate all allegations of torture by security forces and install an independent mechanism for monitoring police behaviour”.  

The amended law is the first step in achieving reparations for the transphobic practices of Kuwait’s authorities and nullifying injustices committed upon Kuwait’s transgender community. Police oversight will be vital in mitigating injustice carried-out under the guise of personal prejudice.