Kuwait is a constitutional monarchy with a parliamentary system of government—the 50-seat parliament is known as the National Assembly. Although political parties are formally banned, several political groups act as de facto parties to which members of parliament (MPs) are affiliated, such as Bedouins, merchants, and Sunni and Shi'ite groups, as well as Islamists and secular leftists and nationalists.
The National Assembly may set up standing and ad-hoc committees whose members are selected from within the assembly. In 2006 Islamist MP Waleed Al-Tabtabai formed an ad-hoc parliamentary committee for the “Study of Negative Phenomena Alien to Kuwaiti Society.” Although the committee was originally established only to study what its members deem to be “negative social phenomena,” it also proposes bills to the National Assembly. One such bill was the amendment to article 198.
The committee raised much controversy, particularly during the 2008 term when the Islamists comprised a majority of the parliament. While its proponents claim that the committee’s mandate is to uphold traditional Kuwaiti values, others see it as a precursor to a Saudi-style Committee to Promote Virtue and Prevent Vice, an authorized law enforcement agency tasked with upholding public morality. Critics accuse the Kuwaiti committee of attempting to impinge on constitutionally guaranteed freedoms, citing its record of trying to impose strict controls on private parties and gatherings, challenging the legal definition of “privacy” in order to further regulate people’s personal lives and conduct, opposing TV shows and concerts that they consider immoral.
These opposing views highlight the increasing rift between Islamists and liberals in Kuwait’s National Assembly. However, while some laws that the committee proposed faced considerable opposition (such as banning “revealing” swimwear for women), the amendment that Tabtabai tabled criminalizing “imitating the opposite sex” was passed unanimously by the 40 MPs present. The issue was seen as insignificant in the larger political battle.
The National Assembly, and its passing of the amendment to article 198, cannot be seen in isolation from these wider social and political trends. As visible symbols of gender transgression who challenge gender norms by presenting as what appears to be the “opposite sex”, transgender persons serve as easy targets against whom the state can flex its moral muscle.
While it is primarily transgender women who face criminal punishment, the social control of transgender women and boyat takes the form of a whole gamut of religious arguments that cast them as sinners who “reject God’s creation,” in addition to “medical” and “biological” arguments that regard them as victims who need to be healed or treated. The two discourses sometimes overlap, and religious dogma and traditional mores rather than science and modern medicine inform much medical practice on the issue.
In religious arguments against gender transgressive behavior and presentation the notion of al-fitra(natural constitution) figures quite prominently, resting on the assumption that men imitating women (or vice-versa) violates the natural constitution of human beings. Effeminate men, boyat, and transgender people are thought to contribute to the spread of corruption and the disintegration of society by upsetting this balance.
Many health care professionals and Kuwaiti religious leaders suggest that “treatment” and “correction” options for transsexual individuals should aim to restore them to their “natural state.” One psychologist suggested injecting testosterone into male to female transsexuals, forcing them to live as men for a period of time: if that doesn’t work, she said, they might be allowed to transition into women.
However, several prominent doctors have advocated for the rights of transgender people, including Dr. Hasan Al-Mousawi, a professor of psychiatry at Kuwait University and Dr. Haya Al-Mutairi, head of the psychiatry department at the Psychological Medicine Hospital, both of whom oppose criminalization.
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The following sections examine the broader socio-political environment and climate of gender regulation in which the amendment to article 198 was passed. The law is analyzed through a human rights perspective, followed by a discussion on debates within Islamic jurisprudence on the issue of SRS and legal gender change in identity.
Gender and sexuality often become foci for broader anxieties in times of rapid social and political change. The criminalization of “imitating the opposite sex” in Kuwait is one element of a broader regime of gender regulation that began to take hold after 1992, when tensions between “liberal” and “traditionalist” Kuwaitis after the Gulf War intensified as each tried to establish their status as influential political entities.
The battle over women’s rights and role in society constituted one of this conflict’s most prominent arenas, and presented an opportunity for traditionalists and Islamists to join forces. According to Kuwait scholar Mary Ann Tétreault:
While tribalists were anxious to keep their daughters obedient and marriageable, Islamists hoped to diminish female competition for jobs available to new graduates during a slow economy. Their shared vision of the globalization threats presented by women whose credentials and skills, including foreign language proficiency, generally exceeded those of men, contributed to ad hoc violence in policing the behavior of women unwilling to submit to conservatives’ demands and expectations.
The events outlined below trace some of the major legislative milestones in the social and political regulation of gender in Kuwait:
Towards the end of the term of the first legislature elected after the Kuwait’s liberation from Iraq, the battle over women’s roles left their rights so undermined that Islamists in the National Assembly were able to pass a law requiring gender segregation in universities. It remains in effect to this day, despite opposition from liberals.
Tensions flared after the National Assembly’s landmark decision to grant women the right to vote and run for office in local and parliamentary elections, a time of dwindling of Islamist influence in the National Assembly. Conservatives opposed the decision, and inserted a last-minute rider that "women as voters and MPs" must follow Sharia without specifying precisely where or how. Islamist and tribal MPs had previously successfully fought off women’s suffrage proposals. Responding to the new law, Islamists tried to enact further legislation to restrict women’s roles in the political sphere and tighten control over “subversive” or “immoral” gendered behavior.
Women’s political participation grew steadily. Then-Prime Minister Sheikh Sabah al-Ahmad Al Sabah appointed the first female cabinet minister, Massouma Mubarak, as minister of planning and administrative development.
Kuwait’s second female cabinet member, Nouria al-Sbeih, caused an uproar when she took the oath of office after refusing to wear the hijab (headscarf or veil) worn by many Kuwaiti women. Although it is not mandatory, conservative MPs attempted to use this refusal to discredit female politicians.
Twenty-seven of the 275 candidates in the parliamentary elections were women. None win.
Kuwait held parliamentary elections for the third time in three years. Of 16 female candidates who ran, four won, becoming Kuwait's first female lawmakers.
Two female MPs, Dr Rola Dashti and Aseel Al-Awadhi, appeared in the assembly without wearing the hijab. Three Islamist MPs immediately protested, citing the Sharia rider that was passed with the electoral law. As a result, Dashti tabled an amendment demanding the rider be dropped. The Constitutional Court ruled that the rider in the election law is not specific and so can be interpreted in different ways. The court dismissed a case brought by a Kuwaiti man to have Dashti and Al-Awadi dismissed from the assembly for violating the election law.
Islamist parliamentarians who cater to a mainly conservative, tribal constituency with proposals for “morality” legislation, introduced two laws. The first, commonly known as the “bikini law,” sought to criminalize revealing swimwear for women. The second aimed to regulate plastic surgery, with specific articles banning sex reassignment surgery, and formally introduced a ban on gender correction in legal papers.
In January, a parliamentary committee rejected the “bikini law,” arguing it is unconstitutional. The plastic surgery bill has not yet passed at this writing.
Media have taken an active role in policing gender. Since 2007 several national talk shows and TV programs have discussed the issue of the “third sex” and the “fourth sex” (references to gender non-conforming men and women respectively) as a social vice that needs to be eliminated. Some journalists, lawyers, parliamentarians, and doctors have opposed this demonization.
An early critic of the amendment to article 198 was Hussein al-Abdallah, a columnist for the Kuwait daily Al-Jareeda, who wrote that the elasticity in the wording of the bill would “violate personal freedoms under the pretext of upholding the law.” MP Adnan Abdulsamad, a member of the National Assembly’s Human Rights Committee, told Human Rights Watch that imprisoning transsexuals was unjust, and they should receive appropriate treatment rather than be sent to prison. Dr. Aseel Al-Awadi, one of the four female parliamentarians and a staunch advocate of women’s rights, also spoke out against imprisonment of transgenders under amended article 198, calling it “a superficial handling of the issue,” and advocated treatment instead. She told Al-Rai newspaper:
In terms of [transsexuals’] rights as citizens, we need to separate between our opinions of their behavior and our professional duties. A doctor should not deny treatment to a person because he or she appears to be “imitating.” Likewise, a police officer must listen to citizens’ complaints even if he disagrees with their dress or behavior.
Given this long-running controversy within government and society over the appropriate roles of men and women, it is not surprising that parliament would turn its attention towards those who visibly challenge these gender roles, such as transgender women, by passing a law criminalizing gender non-conforming appearance, the victims of which have almost invariably been transgender women.
Problems with the Law
The amendment to article 198 is problematic for several reasons. First, it is arbitrary in its application, because it fails to define concrete, specific criteria for what constitutes the offense of “imitating” the opposite sex, effectively allowing police absolute discretion in determining the criteria for arrest. Second, it fails to protect even those who have undergone full SRS, because there is no provision for allowing those who have undergone SRS to change their legal identity. Third, it effectively criminalizes transgender people even though the Kuwaiti Ministry of Health recognizes Gender Identity Disorder as a legitimate medical condition. Fourth, it constitutes clear discrimination against transgenders as the law directly targets individuals whose gender identity and presentation does not correspond with the gender assigned to them at birth.
The amendment to article 198 does not state what constitutes “imitating a member of the opposite sex,” giving the police and the courts complete discretion in determining whether someone’s appearance or actions constitutes “imitation of the opposite sex.” Human Rights Watch spoke with transgender women and biological males who identify as men who say police have arrested them for such arbitrary things as “having a smooth face,” wearing “a feminine watch,” and having “a soft voice.” Many transgender women reported they had started dressing as men to avoid arrest, but even with dishdashas, baggy sweatshirts, long hair tucked under caps, or jeans and sneakers, they were still unable to avoid arrest. Police suspicious of “feminine-looking” males would sometimes go so far as to check whether an individual was wearing female underwear and arrest them on that basis. For Kuwaiti police, it seems there is no way for transgender women not to break the law.
The amendment’s author, MP Waleed Tabtabai, claimed that it was designed to target “members of the third sex.” However, Human Rights Watch has documented cases where police have also arrested male-identified biological men under the article. Ahmad, a 19-year-old man, told Human Rights Watch:
I don’t know why I was even arrested; I am a man, I even had a full beard at the time! In June 2010, I was ordering some food from a drive-through and a police patrol stopped me. They beat me in the street in broad daylight and then took me to the station where they cursed me and beat me. I was finally released three days later after I was forced to sign a confession and promise that I wouldn’t imitate women again. How many women do you know have beards?
Sout al Kuwait, a Kuwaiti human rights group that has criticized the law, asked:
Is a man’s long hair an imitation of women? What about dyeing the hair or the beard with henna? Wearing kohl(a black eye cosmetic)? A lot of these practices are part of Arab heritage and some of them were even practiced by the prophet.
On July 14, 2010, Al-Jareeda daily newpaper reported that the public prosecutor, Hamed al-Othman, urged members of the National Assembly’s legislative committee to clearly define the parameters of what constitutes “imitating the opposite sex.” The newspaper reported that committee members promised to take al-Othman’s recommendations into consideration, either by altering the text of the amendment or in an explanatory memorandum. Neither has happened, and as al-Othman predicted, the misapplication of the law has led to many human rights violations.
Furthermore, the law allows the prosecution of individuals who have undergone SRS because there are currently no legal provisions in Kuwait that allow individuals to change their legal identities. Many transsexuals in Kuwait have had partial SRS in other countries such as Thailand, Syria, and Lebanon, while others have undergone complete sex reassignment surgery. Between article 198 and the refusal of Kuwaiti courts to recognize SRS, these individuals are left in a state of legal limbo. There is virtually nothing they can do to avoid arrest, because although they are now physically female, their identity cards continue to identify them as male. Rola, a 32-year old transsexual woman who had undergone complete sex reassignment surgery in 2004, was arrested five times since the law was passed. The first time she was arrested, on July 23, 2008, she spent two months in pre-trial detention before being declared innocent by a Kuwaiti court. Despite this ruling, police arrested her another four times and released her after humiliating her at police stations.
MP Tabtabai, author of the amendment to the law, recognizes the contradictions of this law:
The decision to legally change one’s gender in one’s identity papers in cases of complete transition should be based on a complete examination and report by a doctor.… In those cases, they should be referred to mental health professionals rather than be imprisoned.
In one case that Human Rights Watch documented, police arrested a transgender woman who had undergone complete sex reassignment surgery but had not been able to change her legal documents for “imitating the opposite sex.” Although she was never brought to court, the police shaved her head and forced her to sign a declaration stating that she would never imitate the opposite sex again.
In April 2004 a landmark ruling by a lower court in Kuwait allowed Amal, a Kuwaiti transsexual woman who had undergone complete sex reassignment surgery in Thailand, to change her legal documents from male to female. The verdict was based on a number of medical reports and a forensic examination carried out on the complainant as well as religious edicts of Al-Azhar in Cairo allowing for sex reassignment surgery in specific cases. In October 2004 the government filed an appeal, supported by a group of Islamist lawyers and Amal's father, who told the court the verdict brought “shame to his family,” and the initial decision was overruled and Amal continues to be identified as male in her legal documents.As there is no law in Kuwait governing sex-change cases, judges base their verdicts on personal conviction.
GID is the formal diagnosis that psychologists and physicians use to describe persons who experience significant gender dysphoria (discontent with their biological sex and/or the gender they were assigned at birth). The International Statistical Classification of Diseases and Related Health Problems (ICD-10 CM) and Diagnostic and Statistical Manual of Mental Disorders (DSM-IV TR) classify GID as a medical disorder. Some authorities do not classify GID or gender dysphoria as a mental illness, describing it instead as a condition for which medical treatment is sometimes appropriate.
The Ministry of Health officially has recognized gender identity disorder in individuals who have received such a diagnosis by the state-run Psychological Medicine Hospital as a legitimate medical condition and issues formal letters to that effect, which many transgender women carry with them at all times. Yet the law does not exempt from arrest transgender people who have received such a diagnosis.
Regardless of medical status, prosecuting individuals because of their gender identity and/or presentation constitutes discrimination against a protected social group. In Kuwait, transgenders are arrested for who they are, not for what they do. The International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Kuwait is a signatory, obliges each State party “to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The Committee on Economic, Social and Cultural Rights has expressly designated gender identity as prohibited grounds for discrimination.
However, even receiving this diagnosis does not guarantee treatment, for which there is no established or recommended path. MP Muhammad Hayef, a member of the assembly’s Committee for the Study of Negative Phenomena, said in a TV interview in 2008 that members of the “third sex”—as transgender people are widely called in popular culture—should not be imprisoned, and called for establishing treatment centers instead. According to Hayef, “Prison increases the spread of this phenomenon but doesn’t treat it.” Despite this perspective, neither Hayef nor any other MP has tried to end the arrests, repeal the amendment, or offer any concrete alternative, such as allowing those diagnosed with GID to undergo sex reassignment surgery and gender correction.
Sara, a transgender woman, decried the hypocrisy of such statements:
One minute they say we shouldn’t be imprisoned, the next minute they’re on TV saying that the police need to clean the streets from such filth…. Who is going to hold them accountable for their words?
Kuwaiti human rights organization Sout Al-Kuwait has argued that the amendment to article 198 contravenes article 10 of the Kuwaiti constitution, which stipulates that the “state cares for the young and protects them from exploitation and from moral, physical and spiritual neglect.”It argued that punishing an individual for a medical condition violates her basic rights and that the state failed to recognize that many of those accused of “imitating a member of the opposite sex” suffer from gender identity disorder, treatment of which “can only happen through sex reassignment surgery.”
Although the state-run psychiatric hospital has issued GID diagnoses, the Kuwaiti police, courts, and other government branches do not recognize it to be a legitimate reason not to arrest and convict people. According to lawyer Abbas Ali, who has defended several cases involving transgender women and has spoken publicly about the issue, innocent verdicts are issued in court cases where there is evidence of a GID diagnosis, although one transgender women told Human Rights Watch that the court ignored her GID diagnosis and sentenced her to six months in prison.
Like many other transgender women, Tharwa has a document from the governmental Psychological Medicine Hospital, with seal from the Ministry of Health, stating that she has GID. Not only does this document not protect her from arrest, but the police refused to include it in her file. Human Rights Watch found this refusal to acknowledge medical reports repeated in all 19 cases we documented where the reports were presented to the police. In one instance that Human Rights Watch recorded, the Kuwaiti criminal court issued a suspended six-month jail sentence to Tharwa in November 2009, even though she submitted her medical papers confirming her GID diagnosis to the judge.
Islamic legal opinion in both Sunni and Shia jurisprudence is divided on the matter of sex reassignment surgery and gender correction, although several high level fatwas (rulings on a point of Islamic law given by a recognized authority) condone it.
The leading Sunni school of theology led by Al-Azhar Mosque in Cairo has issued at least one legal interpretation recognizing the legitimacy of seeking sex change operations. In a 1988 fatwa, the late Egyptian Grand Mufti of the Al-Azhar, Mohammad Sayed Tantawi, issued an edict in response to a request by Sally (Sayid) Abdallah Mursi, a transsexual woman student Al-Azhar’s Medical School for Boys in Cairo. One year shy of graduation, Mursi underwent surgery and attempted to transfer to the girl’s school, but was rebuffed. She won two subsequent legal rulings, but the school ignored them. It also blacklisted her from admission to other medical schools.
Tantawi issued a fatwa that recognized that Mursi’s change was necessary for her health, but required her to dress, behave, and comply with all obligations of Islam for women, except for marital obligations, for one year before the operation. The fatwa was the first positive Sunni ruling about sex changes, allowing them in cases where there is a clear medical condition, which a GID diagnosis would seem to constitute.
The most prominent Shia fatwa on sex changes came in 1987 from Grand Ayatollah Sayyed Ruhollah Musavi Khomeini, an Iranian religious leader and politician and leader of the 1979 Iranian Revolution. For years before, transsexual rights activist Maryam Hatoon Molkara, previously known as Fereydoon, had been lobbying him to grant her religious authorization to legally become a woman. After finally being granted an audience with the ayatollah, he issued a fatwa condoning both SRS and legal gender correction. This fatwa is widely regarded as the edict that authorizes such operations in Iran.
In 2008 in Kuwait, senior Sunni cleric Sheikh Rashid Sa’ad al-Alaymi issued what initially appeared to be a fatwa in a local newspaper in which he stated that SRS should be allowed in cases where gender identity disorder is diagnosed. Al-Alaymi’s statement, which came on the heels of the Kuwait National Assembly’s passing the amendment to article 198, claimed it was a mistake to accuse those with GID of “imitating a member of the opposite sex,” because “they did not choose this of their own will or because it gives them pleasure, but it is something that comes from God in his infinite wisdom.”
However, after heavy attack from the Kuwaiti religious establishment, Sheikh Rashid claimed the newspaper misunderstood and misattributed the document it published in his name. In a letter to Al-Rai newspaper, Sheikh Rashid said that the statement was not a fatwa, but research he had compiled to send to a medical doctor. Religious figures in Kuwait have not issued further legal pronouncements on the matter since the ruling.
Current political groupings include the Islamic Constitutional Movement (ICM) and the Islamic Popular Group (of the Salafi tendency), two Sunni organizations; the Islamic National Alliance, the main faction for Shia Muslims; the Kuwait Democratic Forum (KDF), a loose association of groups with Nassarist and pan-Arab roots; and the National Democratic Group, composed of generally secular progressives with liberal tendencies. The remaining parliamentarians are independents or from tribal confederations.
“Interview on the boyat phenomenon,” online video clip, YouTube, April 15, 2009, http://www.youtube.com/watch?v=_k5Ip4WjbcM (accessed July 2, 2011).
Amelia Naidoo, “Shedding light on the 'Boyat' phenomenon: Conference separates fact from fiction on the issue”, Gulfnews.com, April 21, 2011, http://gulfnews.com/news/gulf/uae/general/shedding-light-on-the-boyat-phenomenon-1.796816 (accessed December 21, 2011).
Human Rights Watch interview with Dr. Naima Taher, Kuwait City, Kuwait, February 12, 2011.
Human Rights Watch interview with Dr. Haya Al-Mutairi, Kuwait City, Kuwait, February 12, 2011.
Gayle Rubin, "Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,” in Carole Vance, ed., Pleasure and Danger: Exploring Female Sexuality (London: Pandora Press, 1993), pp. 267-293.
Mary Ann Tétreault, “Globalization and Islamic Radicalism in the Arab Gulf Region,” unpublished paper on file with Human Rights Watch.
Mary Ann Tétreault, “Contending Fundamentalisms: Religious Revival and the Modern World,” in Mary Ann Tétreault and Robert Denemark, Gods, Guns, and Globalization: Religious Resurgence and International Political Economy (Colorado: Lynne Reinner, 2004).
James Calderwood, “Court rules hijab optional for MPs,” The National, October 29, 2009, http://www.thenational.ae/news/worldwide/middle-east/court-rules-hijab-optional-for-mps (accessed May 2, 2011).
Habib Toumi, “Kuwait committee rejects motion to ban bikinis,” Gulf News, January 31, 2011, http://gulfnews.com/news/gulf/kuwait/kuwait-committee-rejects-motion-to-ban-bikinis-1.754915 (accessed July 14, 2011).
For example, Al-Rai TV has aired several shows discussing the phenomenon, from social talk shows such as Wara’a Al-Abwab(Behind Closed Doors), to regular religious education programming that tackle different issues.
Hussein al-Abdallah, “Imitating the opposite sex … a legal conundrum,” Al-Jareeda, July 14, 2007.
Human Rights Watch interview with MP Adnan Abdulsamad, Kuwait City, Kuwait, February 14, 2011.
Bashayer Abdallah, “Aseel Al-Awadi to Al-Rai: We should not deal with ‘imitators of women’ by passing a law to shave their heads… this is a superficial handling of the issue,” Al-Rai, June 15, 2010, http://www.alraimedia.com/Alrai/Article.aspx?id=209703&date=15062010 (accessed July 15, 2011).
“Al-Tabtabai: Imprisoning third sex and boyat is a law I am proud of,” online video clip, YouTube , April 25, 2010, http://www.youtube.com/watch?v=unAV4mkk3Jg (accessed June 20, 2011).
Human Rights Watch interview with Ahmad, Kuwait City, Kuwait, February 19, 2011.
Sout al Kuwait, “Unconstitutional Laws,” undated, http://www.soutalkuwait.com/booklets/unconstitutionallaws.pdf (accessed November 16, 2011).
“Othman asks legislative committee to specify imitation,” Al-Jareeda, July 14, 2007.
Human Rights Watch interview with Rola, December 8, 2011, Kuwait City, Kuwait.
“Al-Tabtabai: Imprisoning third sex and boyat is a law I am proud of,” online video clip, YouTube , April 25, 2010, http://www.youtube.com/watch?v=unAV4mkk3Jg&feature=related(accessed June 20, 2011).
Human Rights Watch interview with Bahiya, February 14, 2011, Kuwait City, Kuwait.
Nirmala Janssen, “Defiant Kuwaiti transsexual determined to fight it out,” Gulfnews.com, October 17, 2004, http://gulfnews.com/news/gulf/kuwait/defiant-kuwaiti-transsexual-determined-to-fight-it-out-1.335831 (accessed May 17, 2011).
“Muhammad Hayef and the Third Sex,” online video clip, YouTube , July 9, 2008, http://www.youtube.com/watch?v=zd_wq5MIIBs (accessed May 12, 2011).
 Human Rights Watch interview with Sara, Kuwait City, Kuwait, February 6, 2011.
Constitution of Kuwait, art. 10.
 Sout al Kuwait, “Unconstitutional Laws,” undated.
Human Rights Watch interview with Abbas Ali, Kuwait City, Kuwait, February 14, 2011.
Human Rights Watch interview with Tharwa, Kuwait City, Kuwait, February 9, 2011.
See Annex 2.
Zagria, “Sally Mursi (1966 - ) medical student, dancer,” post to A Gender Variance Who’s Who (blog), June 2, 2009, http://zagria.blogspot.com/2009/06/sally-mursi-1966-medical-student-dancer.html (accessed June 3, 2011).
“Intersex” is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that does not seem to fit the typical definitions of female or male. For example, a person might be born with female external characteristics and male internal characteristics.
Dahem Al-Kahtany, “Kuwaiti Fatwa Allows Sex Change,” Al-Rai, September 16, 2008, http://www.alraimedia.com/Alrai/ArticlePrint.aspx?id=79123 (accessed June 12, 2011).
“Al-Alaimy: I did not issue a fatwa allowing sex change,” Al-Rai, September 17, 2008, http://www.alraimedia.com/alrai/Article.aspx?id=79377 (accessed June 12, 2011).