January 10, 2012

III. Ramifications of the Amendment to Article 198

As documented previously, the amendment to article 198 has negative implications that include police abuse and direct violations of the rights to privacy, dignity, and to be free of violence. But it also has several indirect consequences that severely impact transgender women’s lives, including sexual assault by civilians who take advantage of the law to blackmail and rape them without fear of reprisal, and discrimination accessing public health care and employment.

Sexual Assault by Civilians

It is not just police who have taken sexual advantage of transgender women since the passage of the amendment to article 198. Civilians are also aware of the law from arrests reported in the Kuwaiti press, and numerous TV programs that have addressed the issue, usually in a derogatory and vilifying manner.[86] Transgender women told Human Rights Watch that civilian men have taken advantage of the vulnerable position to which the law relegates transgender women: they assume, with reason, that their victims will not report them out of fear of retaliation and because they worry that they will be arrested themselves if they complain.

Haneen recalled her experience in 2008 after a man had stalked her for several months:

One night he broke down the door of my apartment and stabbed me in the shoulder with a knife. He raped me brutally in my own home. When he was finished, he took me in his car to the marina. I thought he was going to take me to the hospital because I was bleeding and in a great deal of pain, but instead he stopped near a police patrol and dared me to report him. We both knew that I wouldn’t, because the police would arrest me instead for “imitating the opposite sex.” Because of this horrible law, he thinks he has complete access to me and my body whenever he wants. I fought back, I resisted, I argued, but he would just taunt me and laugh. And he did the same thing to others that I know. Now I carry a knife with me wherever I go, but I am still afraid.[87]

Human Rights Watch documented four other cases of transgender women who say that civilian men raped them. Five men ambushed Malak, 23, in January 2011 while she was camping with a friend who had completed her transition into a woman:

I pleaded with them to let at least my friend go, she is a woman, and has family asking after her. They got scared and let her go, they didn’t want to risk the consequences of assaulting a woman. When she left, I was alone and they gang raped me and told me to go tell the police if I dared. Of course I didn’t; they’d arrest me immediately.[88]

According to Khouloud, 26, it is common for men to take advantage of the existence of the law to pressure transgender women into going out on dates or having sex with them:

All people know is that there is a law against us, so they use it. They tell us, “You must either have sex with us, give us your phone number, or we will call the police. This is an everyday thing now. So we smile at them, give them our numbers, and then try to figure out a way to avoid them.[89]

Human Rights Watch has documented two such cases, one in which a transgender women said that a civilian reported her to police in retaliation for her refusal to have sex with him, and another where a transgender woman agreed to have sex only to avoid a retaliatory police complaint. Sara’s first arrest in 2008 came after a man reported her to the police, an act she claims was revenge for her refusing his advances.[90] Randa, 22, also said she eventually succumbed to a neighbor’s advances after he threatened to report her to the police. After experiencing the horror of arrest and police humiliation and abuse in 2009, she decided that “even sexual slavery is better than the police.”[91]

Obstacles to Healthcare and Employment

Kuwait provides its citizens with nearly unparalleled benefits, including free health care, free education at all levels, virtually guaranteed employment, and housing grants.[92] The precarious legal and social position of transgender women constitutes a serious obstacle to accessing many of these rights and benefits.

A signatory to the International Covenant on Social, Cultural, and Economic Rights (ICESCR) since May 1996, Kuwait must ensure that everyone in its jurisdiction can access a comprehensive system of healthcare that is available and economically accessible to everyone without discrimination.[93] The amendment to article 198 is a major barrier to this access by putting transgender women at risk of arrest simply by being in a public space.

In order to access free governmental health care, citizens, and residents are required to present their civil ID cards. One transgender woman reported that a doctor refused to treat her when he found that her gender presentation did not match the stated gender on her ID card.[94] In other cases, transgender women say that police arrested them at the hospital after hospital workers, doctors, or other patients called the police to report their presence.

In 2008 Asma, 25, tried to commit suicide after police raped her on several different occasions. Her friend took her to the hospital in Jabriya, but the doctor there refused to treat her. She said that it was only after she began convulsing and foaming at the mouth from the excessive amount of pills she had taken did the doctor agree to treat her. Asma believes she would not have been treated had her situation not been life threatening.[95]

In another case, Hala, 27, was arrested outside her dentist’s office in Salmiya in March 2010. The police later told her that a patient in the waiting room reported her.[96] Rania, 24, told Human Rights Watch that a group of men brutally assaulted her on the street in mid-2009 after she responded in kind to their verbal harassment. She suffered multiple bruises, cuts, and a broken leg. In the hospital waiting room, Rania recounts:

A pregnant woman came up to me and told me that, “We are supposed to report to the police when we see the likes of you.” I was sitting there stunned, my leg was broken and I was bloodied all over.… Even the policeman who came to arrest me after she made the call was sympathetic to me, but there was nothing he could do. He waited until the doctors dressed my wounds and put my leg in a cast and then took me to the station.[97]

Transgender women interviewed by Human Rights Watch said that even when they have been accepted and treated in hospital, they often have been subjected to verbal harassment and humiliation by hospital workers, doctors, or patients. All the transgender women interviewed generally reported they prefer to avoid seeking government medical care because of fear of arrest or harassment, and most prefer to self-medicate. They said they sometimes avoid government health facilities altogether and instead seek private health care, although it is more expensive.

This situation also affects the families of transgender women who, if the only or eldest biological male in the family, often have the responsibility of taking family members to the hospital. Samia, 30, recounted how she could only take her elderly mother to the hospital in the morning because she was too afraid to go out at night for fear of being arrested.[98]

In December 2010 Khouloud had to take her younger brother to Mubarak Hospital in Jabriya district after he suffered a severe asthma attack. She claims hospital workers made them wait half-an-hour before admitting them, even though her brother sat wheezing painfully in a wheelchair, while they ridiculed her and called colleagues in to quiz them on whether she was a man or a woman.[99]

Public sector employment is guaranteed to Kuwaiti nationals and comes with attractive salaries and benefit packages.[100] According to a report by the International Bank of Qatar, 82 percent of Kuwaiti nationals work in the public sector.[101] Despite this guarantee, transgender women reported that discrimination in public sector hiring practices persists against transgender individuals. Article 6 of the ICESCR recognizes the right to work, which implies that the state must guarantee equal access to employment and protect workers from being unfairly deprived of employment. It must also take adequate measure to prevent discrimination in the workplace.[102]

Nadera, 32, with a university degree in forensics, said that she tried to get a public sector job for two years but was turned down by the ministries of Health, Education, and the Interior because of her gender identity.[103] According to Nadera, ministry employees told her explicitly they do not hire her “type” after they discovered that the gender stated on her civil ID was male. At the Civil Service Commission, the body that employs Kuwaiti nationals in  various public sector jobs, Nadera was warned that she would “never be employed anywhere in Kuwait.”[104] It was extremely difficult for her to find either private or public sector employment:

After that I applied to any single job vacancy I could find, I even applied to be a janitor. No one hired me, I would actually be thrown out of the interview, I would be made fun of throughout the interview. People would actually tell me, “We do not hire people like you.” They would actually make me feel like I was in the interview process but they would go and call all of the employees of the company to just come and look at me, as if I was a clown or something to look at…. This happened for one whole year until a foreign company finally hired me.[105]

Some transsexuals who applied for public sector jobs before article 198 was amended were able to secure employment, and interviewees reported little trouble or discrimination at the workplace. After the amendment of article 198, some transgender women who had been in their jobs for years suddenly found themselves the target of harassment by colleagues and bosses.

Riwa, 28, said that after the amendment to article 198 was passed, her co-worker threatened to report her to police unless she did his work as well.[106]  She had no reason to disbelieve him: several of her friends (some of whom Human Rights Watch interviewed) said they had been arrested outside their workplace after colleagues reported them.[107]

[86]From the end of 2010 to mid-2011, Human Rights Watch found at least one media story reporting such arrests approximately every two weeks.

[87]Human Rights Watch interview with Haneen, Kuwait City, Kuwait, February 13, 2011.

[88] Human Rights Watch interview with Malak, Kuwait City, Kuwait, February 16, 2011.

[89]Human Rights Watch interview with Khouloud, Kuwait City, Kuwait, February 9, 2011.

[90]Human Rights Watch interview with Sara, Kuwait City, Kuwait, February 6, 2011.

[91]Human Rights Watch interview with Randa, Kuwait City, Kuwait, February 10, 2011.

[92]CIA World Factbook, "Kuwait," May 3, 2011, https://www.cia.gov/library/publications/the-world-factbook/geos/ku.html (accessed August 2, 2011).

[93] UN Committee on Economic, Social and Cultural Rights (CESCR),General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, http://www.unhcr.org/refworld/docid/4538838d0.html

[94]Human Rights Watch interview with Nadine, Kuwait City, Kuwait, February 6, 2011.

[95]Human Rights Watch interview with Asma, Kuwait City, Kuwait, February 8, 2011.

[96]Human Rights Watch interview with Hala, Kuwait City, Kuwait, February 11, 2011.

[97]Human Rights Watch interview with Rania, Kuwait City, Kuwait, February 8, 2011.

[98]Human Rights Watch interview with Samia, Kuwait City, Kuwait, February 8, 2011.

[99]Human Rights Watch interview with Khouloud, Kuwait City, Kuwait, February 9, 2011.

[100]Laura El-Katiri, Bassam Fattouh, and Paul Segal, “Anatomy of an oil-based welfare state: Rent distribution in Kuwait,” The Kuwait Programme on Development, Governance and Globalisation in the Gulf States, London School of Economics, January, 2011, http://www2.lse.ac.uk/government/research/resgroups/kuwait/documents/Fattouh.pdf (accessed August 1, 2011).

[101]Shane McGinley, “At 88%, Qatar tops public sector jobs rankings,” arabianbusinessonline.com,  August 9, 2010, http://www.arabianbusiness.com/at-88-qatar-tops-public-sector-jobs-rankings-340902.html (accessed July 12, 2011).

[102]UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18, http://www.unhcr.org/refworld/docid/4415453b4.html

[103]Human Rights Watch interview with Nadera, Kuwait City, Kuwait, February 7, 2011.

[104]Ibid.

[105]Ibid.

[106]Human Rights Watch interview with Riwa, Kuwait City, Kuwait, February 9, 2011.

[107]Ibid.