The historic ruling strikes down a law that criminalised trans people by prohibiting “imitation of the opposite sex”.
On Wednesday (16 February) Kuwait’s constitutional court struck down a law that has long been used to criminalize transgender people in the country.
Article 198 of the penal code was amended by the Gulf state’s parliament in 2007 to make the offence of “imitation of the opposite sex” punishable by up to one year in prison and a fine, which the court has now deemed violates the constitution.
The court ruled the law unconstitutional because it didn’t provide “objective standards” that identified the offence, according to Reuters, adding that it was “inconsistent with the constitution’s keenness to ensure and preserve personal freedom”.
The ruling was welcomed by Amnesty International as a “major breakthrough” for transgender rights in the Gulf Arab region.
Lynn Maalouf, the human rights group’s deputy Middle East director, said the law was “deeply discriminatory, overly vague and never should have been accepted into law in the first place”.
“The Kuwaiti authorities must now ensure that Article 198 is repealed in its entirety,” she added. “They must also immediately halt arbitrary arrests of transgender people and drop all charges and convictions brought against them under this transphobic law.”
She went on to call for the immediate release of Maha al-Mutairi, a 40-year-old transgender woman who was jailed and fined under the old legislation, and to “immediately halt arbitrary arrests” of trans people and “drop all charges and convictions brought against them under this transphobic law”.
In June 2020, Ms Mutairi was summoned by authorities after she posted videos on Snapchat accusing police officers of raping and beating her during a seven-month period of detention in a men’s prison in 2019.
In October 2021 she was sentenced to two years in prison and a fine of 1,000 Kuwaiti dinars for “imitating the opposite sex”, among other charges.
Her lawyer, Ibtissam al-Enezi, told Human Rights Watch at the time that the court had used her social media videos as evidence to convict her on the grounds that she was wearing make-up, speaking about her trans identity, allegedly making “sexual advances”, and criticising the government.
Al-Mutairi said that it was the sixth time she had been arrested due to her trans identity. She is currently being held in Kuwait’s Central Prison for men.
Ms Mutairi’s case sparked an international outcry and was the catalyst for Kuwaiti lawyer Ali al-Aryan to begin lawsuit proceedings requesting that the amendment to Article 198, which enforced the ban, be repealed.
The New York Times reports that Shaikha Salmeen, an activist and lawyer who assisted on al-Mutairi’s campaign against Article 198, said Wednesday’s ruling was a step “in the right direction’’, adding that “It was unconstitutional, and no one can doubt that”
Kuwait’s penal code still criminalises sexual relations outside marriage and homosexuality or consensual same-sex relations are still illegal in the country and carry a punishment of up to seven years in prison.