January 10, 2012

Summary

They hunt us down for fun. They don’t want me to dress like a woman so I don’t. I wear a dishdasha (traditional Kuwaiti male garment) now. I cut my hair short. After all that I was still arrested, beaten, and raped for having a smooth, feminine face. What can I do about my face?
–Amani, 24, Kuwait City, February 8, 2011

The role and behavior of women in public has long been a fraught issue in Kuwait, where conservatives have anxiously sought to maintain traditional gender roles and there is growing social anxiety regarding “proper” gender comportment.

Transgender women—persons designated male at birth but who identify and present themselves as women—have never fitted easily into this framework. Nonetheless, many transgender women, who constitute a visible and tightly networked community in this country of approximately 2.5 million people (including non-nationals), told Human Rights Watch they had for many years generally been able to circulate freely, secure employment, access public health care, and live with minimal interference from police. While harassment from the general public was not uncommon, they could access channels of redress, including from police, although the seriousness with which their complaints were handled depended on the individual officer.

That began to change in May 2007, when Kuwait’s National Assembly voted to amend article 198 of the country’s penal code. A previously generic public decency law now stipulated that anyone “imitating the opposite sex in any way” would face one year in prison, a 1,000 Kuwaiti dinar fine (approximately US$3,600), or both.[1] The amendment did not criminalize any specific behavior or act, but rather physical appearance, the acceptable parameters of which were to be arbitrarily defined by individual police.

These provisions have created a sea-change in the lives of Kuwaiti transgender women. Many have become the most recent victims of abuse by police, who often take advantage of the amendment to article 198 to harass, sexually assault, and arbitrarily arrest them.

This report documents the physical, sexual, and emotional abuse and persecution that transgender women face at the hands of police, and it documents the discrimination that transsexual women face on a daily basis—including in public more generally—due to the law, which in itself constitutes a human rights violation.[2] This fuels a climate of inconsistency towards transgender people, which is accentuated by divided Islamic opinion on the matter of sex reassignment and gender correction. The report also looks at obstacles that transgender women face accessing health and employment, and the lack of protection and redress available to transgender people who experience abuse.

For example, transgender women—who were previously often seen in malls, coffee shops, and other public spaces, particularly the city’s social center Salmiya—have since 2008 been the main focus of police arrests for allegedly violating the amendment to article 198. Although many began dressing in male garb and presenting themselves as men to avoid persecution, police have been undeterred, basing arrests on “a soft voice,” “smooth skin,” or some other physical trait beyond the women’s control. Thirty-nine of the 40 transgender women whom Human Rights Watch interviewed said they were arrested, some as many as nine times. In most cases (54 out of 62) the court either acquitted or failed to reach a verdict, although transgender women claim that police forced them, threatening or engaging in physical violence, to sign a declaration stating they would “never again imitate the opposite sex” before releasing them. Only 2 of the 62 cases resulted in convictions (between six months to a year’s imprisonment).

All the women interviewed described some form of police abuse, at times rising to the level of torture, degrading and humiliating treatment, and sexual assault or harassment—although police deny mistreatment.[3]

Kuwaiti media have reported on the arrest of a small number of transgender men, although Human Rights Watch found these arrests happen significantly less frequently than those of transgender women. One possible reason is that women generally enjoy more flexibility in their dress and presentation, and it is more difficult to define what constitutes gender transgressive dress for women than for men. According to several lawyers and transgender women and men interviewed, transgender men and boyat— a term common in the Gulf to describe masculine women—generally escape police scrutiny because police fear accusations of sexually harassing women, charges that are taken very seriously in Kuwait.

Among the abuses transgender women report suffering at the hands of police are beatings and physical abuse with fists and cables, verbal taunts, and humiliation that includes forcing them to clean toilets and being paraded naked inside the police station. Sexual harassment is also a common complaint. In some cases transgender women reported that police had blackmailed them for sex, threatening them with arrest if they did not comply, an act that constitutes sexual assault. Several transgender women have told Human Rights Watch that police use the law and vulnerability of transgender individuals as a way to have easy, consequence-free sex.

Transgender women interviewed said they rarely report the police mistreatment, abuse, and sexual assault they encounter for fear of re-arrest, retaliation, and direct threats by the perpetrators, whether civilian or police. These fears are not unfounded; many transsexuals told Human Rights Watch they were arrested simply for going to the police station to report an unrelated crime. According to Ghadeer, a 22-year old transgender woman:

Before the law we had no problems, we would come and go as we pleased and be out in public safely…. When we were stopped at checkpoints and the police would ask us for our IDs and see that we were male they would just smile or even find us cute and let us pass. In the worst of cases they would try to take our numbers to arrange for a date. So there was harassment, but rarely was it as violent as it is now. After the law came out, I started hearing that X was in prison, Y was in prison. I lived in fear and terror. I felt like I couldn’t move, but it is my right to go out, to go to the souk, to go to the doctor.[4]

In early 2011 the minister of interior resigned in response to several scandals involving police torture. The most notorious case involved the death of Mohammad al-Muteiry, who was detained on suspicion of possessing alcohol and tortured for six days at the Ahmadi Criminal Investigation Department.

In addition, transgender women reported a host of due process and procedural violations connected to their arrest and detention. Many said that police arrested them even though they had done nothing to “imitate” the opposite sex and forced them to dress in women’s clothes at the police station to justify the charge against them; others said that they faced arrest even when reporting other crimes. Police often detained them well beyond the four day pre-charge detention period permitted by Kuwaiti law, they said, and typically failed to inform their families of their whereabouts or did not allow them to meet with their lawyers.

Article 198 has not just led to arrests and police abuse, it has permeated every aspect of transgender lives. It does not criminalize any specific behavior or act, but mere physical appearance, the acceptable parameters of which are arbitrarily defined by individual police.

Transgender women have reported that ordinary citizens in public spaces report them to police, encouraged by an unrelenting vilification campaign in Kuwaiti media that portrays them as a destructive force and a threat to the fabric of Kuwaiti society. They also said that hospital doctors have reported them to police after noting the gender on their government-issued IDs, which they are required to present, does not match their appearance and presentation—effectively limiting their access to health care. Even driving around the city can be perilous, with transgender women reporting that they risk police picking them up at numerous checkpoints on main highways and side streets. Indeed, the situation has become so dire that many transgender women said they live under what amounts to self-imposed house arrest to avoid the dangers that police and the broader public pose.

Adding to the difficult circumstances that Kuwaiti transgender people face is the lack of any law governing sexual reassignment surgery (SRS), a procedure that some transgender people  turn to in order to align their  physical characteristics with their gender identity. While there has only been one court decision in Kuwait to date granting a transsexual woman permission to change her gender in her legal identity papers from male to female, which was quickly overturned by a court of appeals, there is also no explicit legislation banning the procedure. In the absence of any law governing sex-change cases, judges base their decisions on personal conviction. However, conservative MPs are pushing a bill regulating plastic surgery that includes articles explicitly banning both SRS and gender correction, a dire prospect for many transgender individuals who medically require the procedure as treatment for Gender Identity Disorder.

Unlike most people, whose internal, deeply felt sense of belonging to a particular gender corresponds to the sex they were assigned at birth based on their external sex organs, transgender people have a gender identity that differs from their birth sex—known as Gender Identity Disorder, or GID. While the Kuwaiti medical establishment formally recognizes GID as a medical condition, the law continues to criminalize transgender women who suffer from the disorder, including those who have obtained documentation from the Ministry of Health certifying their disorder.

The police abuse and torture that is at the center of this report is itself a grave violation of human rights, irrespective of the law allegedly broken. The amendment to article 198 and its consequences violate fundamental principles of human rights enshrined in international conventions to which Kuwait is a signatory. By criminalizing an individual’s gender expression and identity, the law violates the right to non-discrimination, equality before the law, free expression, personal autonomy, physical integrity, and privacy. The consequences of the amendment further violate the right to health and accessible health care without discrimination. The law adds to the vulnerability of an already marginalized population, making redress for egregious police abuses against them, including sexual assault and torture, difficult due to fear of reprisal.

Kuwait should take immediate steps to investigate allegations of torture, prosecute those responsible, and implement working mechanisms to curb future abuses. In order to comply with its obligations under international law, Kuwait should impose an immediate moratorium on arrests under amended article 198 and repeal the amendment, which in and of itself is vague and overbroad, failing to define the elements of the crime with any specificity, and as a result has been applied in an arbitrary manner. Furthermore, the law constitutes discrimination against transgender individuals. The state should allow those diagnosed with GID to change their gender in their legal identification papers.

The lives of transgender women have been made miserable as a result of the law and the police abuse that has accompanied it—an untenable situation that can, and must, be remedied by repealing the legislation.

[1] Kuwaiti Penal Code, No. 16 of 1960, art. 198.

[2]Gay Kuwaiti men enjoy a relative margin of state and societal tolerance as long as they are discreet about their behavior and relationships, and police generally do not disturb the venues known to be frequented by gay men. Despite male  homosexual sex carrying a much harsher sentence than imitating the opposite sex (a maximum of seven years imprisonment, according to article 193 of the Penal Code, as opposed to one year according to amended article 198), authorities have rarely prosecuted gay Kuwaitis for engaging in homosexual sex.  Homosexual sex between women is not expressly criminalized.

[3]Human Rights Watch interview with Col. Adel Hashash, Kuwait City, Kuwait, February 7, 2011.

[4]Human Rights Watch interview with Ghadeer, Kuwait City, Kuwait, February 14, 2011.