Authorities Should Repeal Repressive Law, Free Detainees
March 31, 2008
Renewing a crackdown on non-conforming dress is a step backward toward intolerance.
Joe Stork Middle East director at Human Rights Watch

New arrests show that Kuwait has resumed enforcing a repressive dress code that criminalizes “imitating the appearance of the opposite sex,” Human Rights Watch said today. It called on the government to investigate allegations of ill-treatment of people detained and to repeal the offending provision, which violates Kuwait’s human rights obligations.

“This vague and sweeping law is based on prejudice and gives authorities a green light to abuse people over how they dress,” said Joe Stork, Middle East director at Human Rights Watch. “It violates basic rights to privacy and free expression, and these continuing arrests show why it should be repealed.”

On December 10, 2007, Kuwait’s National Assembly approved an amendment to Article 198 of the Criminal Code. It states that “any person committing an indecent act in a public place, or imitating the appearance of a member of the opposite sex, shall be subject to imprisonment for a period not exceeding one year or a fine not exceeding one thousand dinars [US$3,500].” Police began arresting people almost immediately, jailing at least 14 people in the first month.

After a two-month lull in enforcing the dress-code law, police began arresting people again in mid-March 2008.

On March 16, the newspaper al-Qabas reported that police had arrested “two men aping women (third sex)” after seeing them in a car in the Shuwalkh Industrial Area. In al-Jahwa governorate, the paper said, police arrested another person in a commercial complex.

Human Rights Watch spoke to two people arrested on March 14. One recounted being stopped with a friend at a police checkpoint at 10 a.m. in Kuwait City:

“When we reached the checkpoint, we were wearing men’s jackets and sports caps. When [they] asked for our ID cards, they removed our jackets and hats and made us stand with our female clothing to prove we are imitating the appearance of women. [One police officer] hit us on our faces, then insulted us, saying ‘You are an animal, nothing but garbage. You are a cast-off of this society, disgusting.’”

Police held them for five days, shaving their heads before releasing them.

Dress codes based solely on gender stereotypes restrict both freedom of expression and personal autonomy, Human Rights Watch said. The only known targets of the new Kuwaiti law have been transgender people – individuals born into one gender who deeply identify themselves with another. Kuwait allows transgender people neither to change their legal identity to match the gender in which they live, nor to adapt their physical appearance through gender reassignment surgery.
Of the 14 people arrested in December 2007, police beat at least three while in detention, leaving one unconscious, their friends reported. One foreign national was deported to Saudi Arabia to face trial in that country. Legal representation was denied to all of the detainees.

On February 26, 2008 , authorities freed all those then detained as part of a general amnesty to celebrate Kuwait’s Liberation Day. No further arrests were reported until March 14.

“Renewing a crackdown on non-conforming dress is a step backward toward intolerance,” said Stork. “Kuwaiti police must call a halt to arrests, and parliamentarians must reconsider the human rights consequences of repression.”

In a December 31, 2007 private letter to Kuwait’s minister of justice, Abdallah Abd al-Rahman al-Matuq, and to the speaker of the National Assembly, Jassem Al-Kharafi, Human Rights Watch urged the government to release the detainees and drop charges against them. In the same letter, Human Rights Watch called on the government to work toward repealing the recent addition to Article 198.

Arbitrary and intrusive gender-based codes for acceptable demeanor and dress violate the rights to privacy and to free expression protected under international law. The beatings and ill-treatment to which authorities reportedly subjected the prisoners violate internationally recognized prohibitions against torture or cruel, inhuman or degrading treatment or punishment.

As a party to the International Covenant on Civil and Political Rights (ICCPR), Kuwait has agreed to respect the absolute prohibition against torture, cruel, inhuman or degrading treatment or punishment set out in the treaty (Article 7). Article 14 of the same treaty affirms the right to counsel. The treaty also bars interference with the right to privacy (Article 17) and protects freedom of expression (Article 19). Kuwait has the obligation to respect and ensure these rights, and to do so in a non-discriminatory manner, as set forth in Article 2.

The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, adopted in 2006 by a group of 29 experts on international human rights law, calls upon states to “take all necessary legislative, administrative and other measures to ensure the full enjoyment of the right to express identity or personhood, including through speech, deportment, dress, bodily characteristics, choice of name or any other means” (Principle 19[c]).