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II. Human Rights Violations Resulting from Male Guardianship and Sex Segregation

Though interpretations may vary, there is no question that all the world’s religions are committed to the pursuit of equality and human rights. However, certain man-made practices performed in the name of religion not only denigrate individual religions but violate internationally accepted norms of human rights, including women’s rights.

—Radhika Coomaraswamy, then United Nations special rapporteur on violence against women, 1994¹⁰

No other policy affects the status of women in Saudi Arabia more fundamentally than the government’s imposition of male guardianship over women. This practice is derived from an ambiguous verse in the Quran that some scholars argue has been misinterpreted by the Saudi religious establishment. Sura 4 verse 34 of the Quran states, “Men are the protectors and maintainers of women, because God has given the one more [strength] than the other, and because they support them from their means.”¹¹

Several Islamic law experts have provided analysis of the rationale behind the institution of guardianship in Islamic history and explain its diminishing relevance today. Islamic scholars have argued that male guardianship over women should be done away with since its two basic preconditions no longer hold true: physical strength is not relevant in the modern era and women can now support themselves financially, often sharing in the household expenses.¹² According to some experts, pre-modern jurists argued for an extension of the authority of male guardians over women because women were more vulnerable to poverty, harm, and exploitation than men.¹³ However, “reasonable modern jurists realize that an argument for extending protection to women by assigning them a guardian is much weaker in the modern context.”¹⁴ Echoing these views, one Saudi professor argues, “Guardianship is linked to a certain era where there was insecurity. But now the authorities and the government are providing you with your security.”¹⁵

Another Islamic law expert has argued that there is no basis to conclude that the jurisprudence of the Hanbali School, the official madhhab (school of thought) in Saudi Arabia, discriminates between men and women with respect to legal capacity.¹⁶ According to Prof. Mohammad Fadel, the vast majority of Hanbali texts reject the notion that a husband has some sort of guardianship powers over his wife that would restrict her independent legal capacity. While some Hanbali jurists believe that a guardian (or ultimately the government) can restrict a woman’s private rights in the name of some other good, such as protecting the family name or the sexual boundaries of society, these restrictions are not legally mandatory. Therefore, according to Professor Fadel, “any restrictions in Saudi law or custom which prevent women from exercising their legal rights is a matter of political will and not strict adherence to Hanbali law.”¹⁷

There is also considerable disagreement among Islamic jurists on the extent of a male guardian’s authority and its restrictions. For example, different interpretations in the Hanafi and Shafi’i schools of legal thought limit the application of guardianship to minors on the basis that they do not have the full legal capacity to act for themselves. According to Dawoud El Alami, a Sharia expert at the University of Wales, “As to who must have a guardian in marriage, the jurists have taken different positions. The general view is, however, that minors, the insane, and inexperienced or irresponsible persons of either sex, must have a guardian — yet the jurists focus on the woman’s need for guardianship while little is said about the need of the man for the same.”¹⁸ Even among those who support male legal guardianship over adult women, there exist certain requirements for the exercise of this guardianship. The person must be a Muslim male of sound mind and good character. Even some Hanbali jurists have argued that guardianship must take into account Quranic prohibitions on guardians’ overreach (‘adl) and should be limited and conditional.¹⁹

Disregarding these current debates about the need for guardianship of women, the Saudi government has allowed its clergy to interpret a verse in the Quran in the most restrictive way possible and has institutionalized it into every aspect of a woman’s life. A representative of the Ministry of Islamic Affairs argued that the rationale for guardianship of men over women is based on a guardian’s financial responsibility or obligations towards his female relatives. “It is not an issue of standards. The issues are clear. A married woman is under her husband’s guardianship.  He is responsible for her education, her health in all cases. Even if she is very rich, she is not responsible for paying for these costs. She has no responsibility to pay for the house, or for daily expenditures.”²⁰

The Saudi government is also unique among Muslim-majority countries in that it imposes almost complete sex segregation. While the policy is not discriminatory on its face since it is directed at both men and women, in practice it prevents Saudi women from participating meaningfully in public life. The government’s Commission for the Promotion of Virtue and the Prevention of Vice (the religious police) strictly monitors and enforces sex segregation in all workplaces with the exception of hospitals. When they discover unlawful mixing of the sexes, they are authorized to arrest the violators and bring them to the nearest police station where they can be criminally charged. Saudi jurists from the Permanent Council for Scientific Research and Legal Opinions described the rationale behind this policy:

In an Islamic society, the call for women to join men in their workplace is a grave matter, and intermingling with men is among its greatest pitfalls. Loose interaction across gender lines is one of the major causes of fornication, which disintegrates society and destroys its moral values and all sense of propriety.²¹

According to Ahmad Ahmad, a professor of religious studies teaching at the University of California, Santa Barbara, specializing in Sharia, the underlying rationale of this ruling is outdated in that it assumes that Saudi women simply have no exposure to public life that would allow them to make informed decisions. “Saudi clergy who are not in favor of women’s freedom speak as if the conditions in Saudi society today are the same as they were in a pre-modern society where women’s vulnerability to harm is a paramount concern and the realm of women’s experience, by and large, is severely limited.”²² He noted that other Islamic jurists argue that “modern transformations of society render certain views restricting women’s participation in the public sphere obsolete” and so “if juristic rulings revolve where the rationale revolves, then these outdated rulings must revolve out of the realm of juristic discussion today, as their bases often exist only in distant memory.”²³

Denying Women the Right to Education

Education is a compulsory religious duty. No one has the right to deprive women of that.

—A Saudi woman, Riyadh, December 2, 2006

Saudi Arabia has made significant progress on female education and literacy in the past 50 years, albeit within restricted parameters.²⁴ According to a UN report, while in 1970 only 16.4 percent of Saudi women over the age of 15 were literate, by 2005, 83.3 percent of Saudi women within that age bracket were estimated to be literate.²⁵

Despite these steps forward, the general framework of education continues to reinforce discriminatory gender roles and women’s second-class status. Article 153 of the Saudi Policy on Education states, “A girl’s education aims at giving her the correct Islamic education to enable her to be in life a successful housewife, an exemplary wife and a good mother.” To ensure this aim, the Department of Religious Guidance oversaw girls’ schooling at all levels until 2002.²⁶ Dr. Amani Hamdan, an education expert who has studied Saudi Arabia’s approach to female education, wrote that “this was to ensure that women’s education did not deviate from the original purpose of female education, which was to make women good wives and mothers, and to prepare them for ‘acceptable’ jobs such as teaching and nursing that were believed to suit their nature.”²⁷ The UN Committee on the Rights of the Child expressed serious concern in 2001 that Saudi Arabia’s “policy on education for girls (e.g. articles 9 and 153 of the 1969 Policy of Education) discriminates against girls and is incompatible with article 29 (a) of the Convention.”²⁸

Women’s and girls’ access to education often depends on the good will of male guardians. According to a number of students, school authorities require a guardian’s permission to enroll women and girls in all levels of education. Female university students told Human Rights Watch that they cannot pursue a course of study or apply for an academic internship without permission from their guardian. One female student told Human Rights Watch, “Even some of our fathers are disgusted by this. They have to come all the way to the university to approve our courses and register us.”²⁹ Another student said, “In order to ensure that a woman’s education will not interfere with her household chores, the husband of one of my peers had to come to the university and give permission to allow his wife to do an internship during her studies.”³⁰ A representative of King Saud University (KSU) in Riyadh denied that this was a Ministry of Higher Education policy and told Human Rights Watch her university does not require permission from a guardian in order to enroll female students in any discipline. She said that the dean of the university even intervened when a father refused to allow his daughter to study dentistry because it would require her to interact with male students.³¹

To be eligible for government scholarships to study abroad, the Ministry of Higher Education requires female students—unlike their male counterparts—to be married and accompanied by their husband, or otherwise accompanied by a male guardian.³² The Saudi press has reported on the increasing phenomenon of “mesfaar marriages” (derived from the Arabic word for travel) whereby female university students desperate to continue their studies overseas marry simply in order to meet these scholarship requirements.³³

The practice of strict sex segregation also undermines the right of women to equality in education. Female university students and professors are often relegated to unequal facilities with unequal academic opportunities: for example, at KSU, a public university, female students study in the older buildings with an inferior library, and the administration only allows them to use the main library in the male colleges one day per week, from 8 a.m. to 5 p.m.³⁴ No women are allowed in the King Fahd public library in Riyadh; women must call in advance for materials and send their drivers to pick these up.³⁵

University policy also restricts the number and types of programs offered to female students. While Saudi women make up 58 percent of university graduates,³⁶ the vast majority study at teachers’ colleges. The state fully funds undergraduate education for Saudi men and women, but there are still no public university programs for women in engineering, architecture, or political science, and women are prohibited from studying these disciplines in the male colleges. The prestigious King Fahd University of Petroleum and Minerals in Dhahran continues to exclude female students entirely. According to a Saudi professor at King Saud University, while there are 14 languages taught in the male departments, only two are taught in the female departments.³⁷ Several female medical students at King Fahd Teaching Hospital in Khobar told Human Rights Watch that some professors do not allow women to pursue studies in those professors’ specialization or department.³⁸ At the Teaching Hospital in Khobar, female students are restricted from pursuing a specialization in general surgery, orthopedic surgery, and pediatrics. One student said, “In all hospitals, there are certain departments headed by people who are against women being in the medical profession.”³⁹

Female university students at public universities told Human Rights Watch that university administrators prohibit women from leaving the premises unless they verify the identity of the person picking them up. A female university professor confirmed that female departments are locked during the teaching hours and female students cannot leave the campus unless a legal guardian or designated driver comes to collect them.⁴⁰ Female students living in dormitories said they are prohibited by school authorities from leaving (even in the case of illness) except with a legal guardian. They said school authorities require a guardian’s authorization even to allow ambulance personnel (who are always male) into the school, so if an emergency arises and academic administrators cannot reach a guardian to authorize the student’s removal, her health and life could be at risk.

The risk sex segregation can present to life and health is illustrated by reports of a tragedy in March 2002, when a fire at an elementary girls’ school in Mekka resulted in the death of 15 girls. According to journalists and eyewitnesses, the religious police did not allow the girls to exit the school without their headscarves, contributing to their deaths.⁴¹ The Ministry of Education denies this version of events.

Denying Women the Right to Employment

Women need jobs and an income, but they are sitting there fighting about technicalities. Women need jobs not only to support their [nuclear] families but also their parents. We need to find a way to bring these women into the labor force.

—A Saudi businesswoman, Jeddah, December 11, 2006

Saudi women continue to be marginalized almost to the point of total exclusion from the Saudi workforce. The kingdom has one of the lowest rates of working women in the world. In 2004, the latest year for which information is available, the United Nations ranked Saudi Arabia 74th out of 75 countries with respect to gender empowerment, an indicator determined by the extent to which women are taking part in economic and political life.⁴² Saudi women account for only 4 percent of the total workforce and 10.7 percent of the Saudi labor force (excluding migrant workers).⁴³ As women are prohibited from studying at the engineering colleges (with the exception of interior design), there are no practicing female engineers in the kingdom. There are also no female judges, prosecutors, or practicing lawyers in Saudi Arabia. While King Abdul Aziz University’s first class of female law students will graduate in 2008, the Saudi Ministry of Justice continues to prohibit women lawyers from acquiring licenses to practice.⁴⁴ Sharia scholar Shaikh Ahmad bin Hamad al-Mazyad, who served as a senior advisor to the Ministry of Justice for more than 20 years, told Human Rights Watch that the appointment of female judges was not under discussion.⁴⁵

Female professionals told Human Rights Watch that employers in both the private and public sector require female staff to obtain the permission of a male guardian in order to be hired. One woman told Human Rights Watch, “I was applying for a job as a teacher. All my papers were in order, and everything was fine. But before I started work, they asked me to get written permission from my guardian to take the job.”⁴⁶  A representative of the Ministry of Labor confirmed that under the current system, women are required to provide proof of a guardian’s permission in order to be hired in some sectors. While he initially told Human Rights Watch that, in practice, when women reach working age “employers often do not ask for permission,” he admitted that the government requires teachers, the profession of the vast majority of Saudi women, to provide such permission. “We ask [female] teachers to provide permission since they often teach far away, so yes, they need permission from a guardian. But we often don’t ask in the medical sector.”⁴⁷

Employers can force a woman to resign or fire her at any time if her guardian decides (for any reason) that he no longer wants her to work outside the home.

Although the new Saudi Labor Code, which came into force in 2006, does not include a provision requiring sex segregation in the workplace, there is little evidence that this has in any way affected the current work environment, which remains highly segregated. The Code states that “all Saudi workers have equal right to work in all parts of the kingdom, without discrimination,”⁴⁸ but other provisions within the Code counteract the equality provision, notably article 149, which states, “Taking into consideration the provisions of article 4 [vaguely requiring adherence to Sharia] of this law,⁴⁹ women shall work in all fields suitable to their nature.”⁵⁰

Sex segregation in the workplace has particularly adverse and discriminatory consequences for women by making them unattractive as employees. For employers, the need to establish separate facilities for women, and women’s inability to interact with government agencies without a male representative, provide significant disincentives to hiring them.⁵¹ An additional disincentive is that employers must sometimes coordinate their female employees’ transportation since women are barred from driving. One businesswoman told Human Rights Watch that she is forced to raise the salaries of her female employees to compensate for their transportation costs:

Otherwise her salary will go solely to pay for transportation. If a cleaning lady gets 1500 SR [US$400], 500 SR [US$133] goes to the driver. Transportation is a big problem. As a businesswoman, I’ll always hire a man over a woman; for the woman, I have to figure out how she’s going to come into work every morning. Some will tell me the driver didn’t come today or came an hour late. How can I blame her for that? I’m not talking about rich women who can get a driver, but everyone else. You can’t depend on your brother or father or uncle to take you where you need to go. It’s not a luxury; it’s one of the basic needs of life.⁵²

In 2005 the Council of Ministers passed Resolution 120 aimed at expanding employment opportunities for women. Section 8 of the resolution stipulates that only Saudi women would be allowed to work in shops for women’s products. However, opposition from influential religious authorities hostile to women’s participation in the public space is said to have blocked these efforts.⁵³ Minister of Labor Ghazi al-Qusaibi told Human Rights Watch, “We want to expand the horizon for women to participate in the labor force. We thought to go about it in a way that doesn’t clash with our mores. We started with places that sell women’s clothing and lingerie. We want to start with those, then at least get some support. We were surprised by the most ferocious and orchestrated attack against us.”⁵⁴ As the government did not establish any implementing authority to execute the resolution, the resolution was never put into practice.

Denying Women the Right to Health

Even if you go to a hospital for an operation, you need a guardian. It’s your life. Why do you need his signature?

—A Saudi woman, Riyadh, November 29, 2006

Saudi women’s fundamental right to health is jeopardized by the male guardianship system. At some hospitals, health officials require a guardian’s permission for women to be admitted, discharged, or to administer a medical procedure on her or her children. The requirement for guardian consent is not based on any regulation, but as one physician explained to Human Rights Watch, “It depends on the [hospital] administration, whether those responsible hold extremist religious views or not.”⁵⁵ The head of the General Directorate of Hospitals told Human Rights Watch,

The law is written and clear that a woman has the right to be admitted without permission. It is the right of any lady or male to be admitted and discharged if [they are] over 18. Any procedure can be signed by the patient himself if they are wise enough. It is well known that a physician must provide medical care whenever a patient needs it. But a lot of social factors play a role limiting the application of the law. What we need right now is to work hard to educate the people about their rights. The law is there; that it is not applied is something else.⁵⁶

Given the all-encompassing guardianship system in place in the kingdom, it is clear that the Ministry of Health has a vital role to play in informing female patients of their rights and ensuring that health professionals do not violate their medical obligations by requiring a guardian’s permission for a woman to receive care of any kind. 

Health professionals told Human Rights Watch that healthcare providers require husbands to approve, in particular, any treatments that may affect the fertility of their spouses.⁵⁷ However, a representative of the Ministry of Health told Human Rights Watch that under their guidelines the only medical procedure requiring a guardian’s permission was sterilization.⁵⁸ One woman told Human Rights Watch, “I had a problem with my cervix. The doctor told me that I needed an operation and wouldn’t be able to have any more children. I needed to bring my husband to the hospital to sign and approve the operation.”⁵⁹ One physician described her frustration with this policy: “Why does a husband need to sign and approve these procedures? Why should she wait to be treated? What if he doesn’t care about her physical well-being?”⁶⁰

Another physician told Human Rights Watch, “When no guardian is available, some hospitals require medical procedures to be approved by two medical consultants and a medical director. If it’s an emergency, we can proceed.”⁶¹ One woman told Human Rights Watch, “My sister needed to get approval to have an IV inserted. We got the driver to sign and approve it.”⁶²

Women in labor who arrive at a hospital without a guardian are particularly at risk since the authorities could contend that the pregnancy was the result of an extramarital relationship, a criminal offense. A clinical psychologist told Human Rights Watch,

If a [pregnant] woman comes in to the hospital with a guardian, then she can leave with anyone, even the driver. If she comes in without a guardian, it becomes a “police case,” and she’ll need a guardian to come to the hospital in order for her to get discharged. She stays here if no one picks her up.⁶³

A physician at the Riyadh military hospital told Human Rights Watch that two years previously, a woman came into the hospital in labor without her guardian and required an emergency caesarian section. Her husband was traveling and could not provide permission for the procedure. The physician carried out the operation anyway, taking on considerable personal responsibility. Once the husband was able to arrive at the hospital, they managed to falsify the date of approval to predate the procedure.⁶⁴

Contributing to Women’s Risk of Violence

There’s no other place we can send her. We’re always going to run into the problem of guardianship. We treat all the abuse cases, and then they go home. The police advise the women to go back to their husbands. They don’t do anything that will cause a scandal. They will advise them that it’s important to avoid scandal and then they are convinced.

—A Saudi social worker, Riyadh, December 7, 2006

The imposition of male guardianship on women makes it nearly impossible for victims of domestic violence to independently seek protection or to obtain legal redress. Police frequently require women and girls to obtain their guardian’s permission to file a criminal complaint, even when the complaint is against the guardian.⁶⁵ A social worker at the National Guard Hospital in Riyadh described her frustration with this policy and gave an illustration of her hospital’s inability to respond to cases of violence against women. The social worker told Human Rights Watch about a case of a Saudi woman in her late thirties wh0 came to the hospital after her husband shot her. “Her husband was a retired police officer, an alcoholic and drug addict. She came in twice with bullet wounds. After we treated her the first time, I came in with the police to ask her whether she wanted to file a complaint. To do that, she would need a legal guardian to file it on her behalf at a police station in her neighborhood,” she said. Understandably, the woman chose not to file the complaint. When her husband later shot her a third time, she died of her wounds at the hospital.⁶⁶

The lack of specific legislation criminalizing all forms of family violence and the near impossibility of removing guardianship from abusive relatives can condemn women and children to a life of violence. According to an attorney working with the National Society for Human Rights (the only recognized quasi-independent human rights organization in the country), removing guardianship from a father, even an abusive one, is one of the most difficult legal processes they undertake. Only 1–2 percent of these cases succeed.⁶⁷ In one case it took the courts five years to remove the guardianship from a father who was sexually abusing his children.⁶⁸ One clinical psychologist told Human Rights Watch of a case in which a father sexually abused his five daughters. When one of them complained to the police, they asked her to bring her guardian to the station to file the report.⁶⁹ Another physician who runs a private clinic told Human Rights Watch, “There are no laws that protect women. Every day we see cases, and there is nothing we can do to protect them. This is his daughter or wife, so he can do whatever he wants with her. There are no laws that protect women from abusive situations.”⁷⁰

The prevailing environment of sex segregation makes women hesitant to walk into a police station (all police officers are male). Some Saudi women voiced reluctance about even calling the police without a guardian in the house. One social worker told Human Rights Watch, “A woman cannot just walk into any police station. She needs a legal guardian.”⁷¹ The Saudi authorities did not respond to Human Rights Watch’s request for information about whether the police officially require a guardian’s permission to admit women into the station.⁷²

Denying Women the Right to Equality before the Law

You’re faced with being humiliated daily. We really do not have an identity.

—A female Saudi professor, Riyadh, November 29, 2006

While in the vast majority of countries governments only deny minors and those with certain mental disabilities the right to make decisions for themselves, in Saudi Arabia the government extends these limitations on legal capacity to fully competent adult women. At its core, the imposition of male guardianship denies Saudi women their right under the UN Convention on the Elimination of all Forms of Discrimination against Women to “a legal capacity identical to that of men and the same opportunities to exercise that capacity.”⁷³ The Saudi authorities essentially treat adult women as legal minors who are entitled to little authority over their own lives and well-being.

Women and the courts

As legal minors, women are severely constrained in their ability to access and engage with the courts and the government bureaucracy without a male representative. Women continue to have trouble filing a case or being heard in court without a legal guardian. Courts generally refuse to accept a Muslim woman’s testimony as a witness in criminal cases.⁷⁴ Two women told Human Rights Watch that judges had refused to allow them to speak in the courtroom because they deemed their voices to be shameful (‘awra).⁷⁵ Judges granted only their mahram (chaperone) the right to speak on their behalf.  When asked about this, a former representative of the Ministry of Justice told Human Rights Watch that women are entitled to be present in the courtroom and speak to judges if they are wearing a full face veil (niqab). He added that any restrictions “could be an exceptional case. It depends. No one should raise their voices or speak in too feminine a manner in the courtroom.”⁷⁶ Saudi courts require a mu’arif (a person able to identify a woman wearing niqab) to confirm a woman’s identity before she enters the courtroom; it is not enough to have an ID card. This same representative confirmed that without female sections in the courts with female staff able to confirm a woman’s identity, all women are required to bring a mu’arif.⁷⁷  One attorney told Human Rights Watch, “The attitude in the Sharia courts is that people don’t need lawyers to deal with the sheikh. Of course a woman shouldn’t address the sheikh herself. If she does, she needs to wear niqab. It’s preferred that a mahram speaks for her.”⁷⁸ According to another attorney, “Unfortunately, judges consider women to be lacking in ‘aql [reason] and faith, so generally do not agree with her arguments.”⁷⁹

The government’s guardianship policy has created a legal paradox that holds women legally responsible for any crimes they commit while at the same time not considering them to have full legal capacity. In fact Saudi Arabia has established no minimum age of criminal responsibility for girls. While there is no law determining a uniform age when children can be treated as adults in criminal cases, the Council of Senior Scholars decreed puberty as the threshold for trying a child as an adult in murder and manslaughter cases.⁸⁰ While the Saudi government denies women their right to make decisions throughout their lives, it has no apparent qualms about holding them responsible for their actions at puberty. “If we commit a crime, we will be held responsible just like any man. But when we want to deal with our own affairs and finances, we cannot,” said one woman.⁸¹

Identity documents

The government only granted Saudi women the right to an independent identification card in 2001. Prior to 2001 the authorities registered all Saudi women under their father or husband’s family card. Obtaining a separate identification card is optional and still requires a guardian’s permission. According to the Saudi Civil Affairs Law, “Whoever completes fifteen years of age of the male Saudi nationals shall check with one of the civil status department to obtain his own identity card, and obtaining such card shall be optional for women and for those between ten and fifteen years of age after agreement of their guardians.”⁸² One 22-year-old woman told Human Rights Watch, “I don’t have a right to ask for my identity. The law says that all women should have an ID card, but we need permission from our guardian. I’ve been asking my father to take me to get one for a year, but he has refused.”⁸³ While the Ministry of Interior is said to have taken a decision recently eliminating the need for a guardian’s permission for women to issue ID cards for themselves or their children, Human Rights Watch was not able to find any written evidence of this decision. As late as March 2008, Saudi women complained that officials continued to ask for a guardian’s permission to issue the cards.   

While the religious police put pressure on Saudi women to wear full niqab in public, as a security measure they appear with their faces uncovered in their identification cards. Saudi women who wear full niqab must bring a mu’arif to identify them in order to carry out any administrative actions that would require a verification of their identity in offices without women’s sections. One woman told Human Rights Watch, “Nobody recognizes our ID cards. I can’t even pick up my divorce papers with it. If I try, they will ask me to bring someone in to verify who I am.” Even the most mundane tasks often require a mu’arif. For example, some cellphone stores prohibit women from buying cellphones without their guardian. One woman told Human Rights Watch, “My daughter tried to get [a cellphone] and told the salesman that she could uncover her face to verify her identity but the salesman refused.”⁸⁴

Particular difficulties facing divorcees and widows

The lack of full legal capacity affects divorcees and widows in particular, many of whom find it extremely difficult to survive in Saudi Arabia without a male guardian who is willing and able to navigate the government bureaucracy on her behalf. One woman told Human Rights Watch, “You need a guardian for everything, and poverty makes this need even worse. Women are lost when their guardian is absent. Her whole life gets cut off. She cannot do anything.” Another woman told Human Rights Watch that her mother decided to remarry because of the problems she faced with male guardianship: “She had to get married to get things done. She told me, ‘I sold my body so that my paperwork can get taken care of. It’s tarnished my reputation and dignity, but our affairs are being resolved.’ I saw how much my mother suffered from guardianship. We cannot take any step forward without a guardian’s approval.”⁸⁵

While the authorities usually transfer guardianship of divorcees and widows to their closest male relative, some foreigners who acquired Saudi nationality through marriage and subsequently divorced remain in the kingdom without a guardian; while most return to their country of origin, some continue to reside in Saudi Arabia in order to ensure contact with their children. One such woman, a divorcee, told Human Rights Watch, “I’m mahram-less, which makes me persona non grata in Saudi Arabia … I don’t really exist in the system. My passport is a married passport and in order to transfer it to a single passport, I need an ID card.”⁸⁶ However, she is unable to get an identification card without a guardian and needs her ex-husband’s permission in order to travel with her current passport. She is also concerned that if she were to return to her country of origin, the Saudi authorities may deny her a visa to reenter Saudi Arabia to see her children.

Denying Women the Right to Freedom of Movement

Does the fact that a son supports his mother, or a brother his sister, empower them to restrict her movements? What if that son or brother were evil, unkind to his parents or sisters, refusing to let his mother travel even in cases of necessity?

—Saudi writer Nura al-Khuraiji’s open letter to the Consultative Council, April 2000⁸⁷

No country restricts the movement of its female population more than the kingdom of Saudi Arabia. The Ministry of Interior prohibits Saudi women from boarding a plane without the written permission of a male guardian. When traveling without a guardian, the ministry requires Saudi women to travel with yellow cards that stipulate the number of trips and for how many days their guardian has approved their traveling.⁸⁸ The authorities also deny women the right to acquire a passport without a guardian’s permission.⁸⁹ The Ministry of Interior’s website contains a specific section on “Travel Permits for Women and Children” where it clearly states, “Passport owners cannot travel before being issued a travel visa from the Ministry of Foreign Affairs and family guardian approval is necessary to issue this visa.”⁹⁰ Airport officials may stop women from boarding a flight without valid permission. One 35-year-old woman, Wafa A., told Human Rights Watch, “I worked for five years at a bank. I’m completely financially independent. But the major problem that I’m facing is that I’m not allowed to travel even to Jeddah or the Eastern Province without permission. Sometimes I have work in Jeddah but I can’t go.” Wafa A.’s father transferred guardianship rights to her brother, who is 10 years younger than her: “My father gave him full control and responsibility over me … My father is still my guardian on paper, but my brother is the one in reality.”⁹¹ Foreign women under the age of 45 traveling to Saudi Arabia for the hajj or pilgrimage are required to travel with a male relative as their chaperone.⁹²

Saudi Arabia remains the only country in the world that prohibits women from driving. The government’s restrictions on driving combined with limited affordable and accessible public transportation options prevent Saudi women from fully participating in public life. While the government claims that there is no official ban,⁹³ there are no women drivers in the kingdom as it universally understood that it is not allowed.  A fatwa (religious ruling) issued by the late Shaikh 'Abd al-‘Aziz bin Abdullah bin Baz, then chairman of the Council of Senior Religious Scholars, reinforced the prohibition. The fatwa stated,

There is no doubt that such [driving] is not allowed. Women driving lead to many evils and negative consequences. Included among these is her mixing with men without her being on her guard. It also leads to the evil sins due to which such an action is forbidden.⁹⁴

On November 6, 1990, 47 Saudi women drove in a Riyadh parking lot in protest against the driving ban. The traffic police stopped the protesters, took them into custody, and released them only after their male guardians signed statements that they would never attempt to drive again. The government suspended the women from their government jobs, confiscated their passports, and told them not to speak to the press. Several of the women were forced out of their jobs for three years.⁹⁵ Sixteen years on, one such woman told Human Rights Watch she believes she has been denied many opportunities for career advancement due to her participation in the protest.⁹⁶

Denying Women the Right to Equality in Marriage

The Right to Enter Freely into Marriage

Like other Muslim-majority countries, Saudi Arabia relies on a personal law system based on Sharia, which treats marriage as a contract concluded by mutually consenting parties where one party makes an offer (ijab) and the other accepts (qabul).⁹⁷ The Saudi authorities limit a woman’s ability to enter freely into marriage by requiring her to have the permission of a male guardian (wali al-amr). Guardianship in marriage falls under two categories: guardianship with the right of compulsion (wilayat-ul-ijbar),and guardianship without the right of compulsion (wilayat-un-nadb).⁹⁸ According to scholars, the opinion of the jurists in the Hanbali School is that “[a] guardian who is the father or grandfather of a minor or virgin girl is free to approve a marriage for his ward without her consultation.”⁹⁹ However, Hanbali scholars recommend that the approval of virgin women who have reached majority be given as well as the approval of minor girls who have already been married.¹⁰⁰ In Saudi Arabia guardians also have the unilateral authority to dissolve marriages they deem unfit.

In April 2005 Grand Mufti Shaikh Abd al-‘Aziz Al al-Shaikh, the head of the Council of Senior Religious Scholars, spoke out against forced marriages, stating, “Forcing a woman to marry someone she does not want and preventing her from wedding that whom she chooses However, to date the government has done nothing to prevent Sharia court judges from preventing women from choosing their spouse or forcing their divorce when their guardians insist on it.

A recent case given a high profile in the Saudi press highlights the overarching power legal guardians have to dissolve marriages they deem unacceptable. It concerns the forcible divorce of 34-year-old Fatima `Azzaz from Mansour al-Timani.<sup>102</sup> Fatima `Azzaz’s half-brothers took legal action following the death of their father, claming that Mansour had misrepresented his tribal affiliation when he asked for permission to marry Fatima. While Fatima, who was pregnant at the time of the first hearing, informed Judge Ibrahim al-Farraj at a court in the northern city of Juf that she wanted to remain married, he ruled in favor of the brothers and ordered the divorce in August 2005. He found that Timani’s tribal lineage was socially inadequate for him to marry `Azzaz, essentially declaring that the marriage could harm the reputation of `Azzaz’s family since Timani is of a lower social class. Following the court ruling, Eastern Province governorate officials, who answer to the Ministry of Interior, harassed and persecuted the couple, including by detaining `Azzaz and her two children in Dammam Public Prison because of her unwillingness to return to her half-brothers, whom she feared because of violence directed against her and a history of family disputes. In April 2006 she was transferred to another detention center in Dammam under the administration of the Ministry of Social Affairs, where she remains at this writing. The Riyadh Court of Appeals in January 2007 upheld the original court verdict, ending judicial appeals.¹⁰³

In February 2007 a group of Saudi women launched a petition to King Abdullah urging him to forward the couple’s case to the Supreme Judicial Council in an effort to reverse the appellate court’s decision. The petition also asked the king to re-evaluate the “laws pertaining to guardianship of competent, adult women.”¹⁰⁴ The government did not respond to this petition. The chairman of the Human Rights Commission of Saudi Arabia told Human Rights Watch in March 2008 that he has asked the king to intervene several times in the case. The Commission has commissioned a study by a Sharia expert on the unlawfulness of divorces based on differing tribal lineage that they plan to send to the Supreme Judicial Council.¹⁰⁵        

The Right to Equality with Respect to Guardianship of Children

The Saudi government deprives women of the right not only to act as their own guardian but also to be the legal guardian of their children during marriage and following divorce.¹⁰⁶ In the event of divorce the law automatically transfers legal and physical custody to fathers when boys are nine and girls are seven; even when women succeed in getting a court to grant them physical custody of their children (for example, because the father is found unfit), fathers always retain legal custody and the right to make virtually every decision for the children. Married and divorced Saudi women alike told Human Rights Watch that they cannot open bank accounts for their children, enroll them in school, obtain school files, or travel with their children without written permission from their children’s father. One woman told Human Rights Watch, “I tried to have a birth certificate issued for my one-year-old child but I couldn’t. They needed the legal guardian [to make the request]. I can’t even deposit a birthday check into his account for him.”¹⁰⁷

Human Rights Watch spoke to a divorced woman in her thirties who has physical custody of her children while their father retains legal guardianship. In December 2006 two doctors recommended that her 11-year-old son have a minor operation. Her husband refused to provide permission for the operation, which he deemed to be unnecessary. “I spoke to the insurance company, and they said they received approval to carry out the operation but it was cancelled. I asked them why, and they said that it was because the father had prohibited it.” In an effort to override his decision, she wrote letters to the minister of justice, the governor of Riyadh, and the head of the Human Rights Commission. Initially, the governor’s office told her that there was nothing they could do, but two weeks later they provided permission to go ahead with the operation.¹⁰⁸

A pediatrician confirmed to us that while either a mother or father can sign for an operation under the Ministry of Health’s guidelines, some doctors assume that only the child’s father is empowered to do so. “A mother can sign for her child. But there are some problems with doctors. We need to educate them that a wali al-amr [guardian]is a mother or father.”¹⁰⁹

In exceptional cases when no male guardian is present, the Saudi authorities allow women to play an advisory role (wisaya) of children, with legal guardianship rights. Human Rights Watch spoke to a woman in her thirties who is the legal advisor of two teenage half-sisters, while her own guardian is her uncle. “I’m a responsible person … I have the wasiya of two younger siblings and can take responsibility for these two girls but I can’t take responsibility for myself. Instead, someone who doesn’t support me in any way or even contact me can make decisions about my life.”¹¹⁰ This creates the paradox that women may have legal authority over others while they themselves still require a guardian’s permission in major aspects of their lives.