Kuwait court declares law on ‘imitation of opposite sex’ is unconstitutional

In milestone ruling, judges say Article 198 of the penal code is not specific enough to 'legally determine a sinful act'

Kuwait's constitutional court in Kuwait City. Kuwait News Agency
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Kuwait's constitutional court has declared as unlawful an article of the country's penal code that criminalises the “imitation of a member of the opposite sex”.

The court issued its final ruling on Wednesday, after hearing an appeal from a Kuwaiti citizen charged under the law.

It found the law unconstitutional on the grounds that it was not specific enough to “legally determine a sinful act”.

Article 198 of Kuwait’s penal code deals specifically with acts of public immorality.

It was amended in 2007 to include the prosecution of those imitating the appearance of a member of the opposite sex, making the act punishable with imprisonment for up to a year, or a fine of up to 1,000 Kuwaiti dinars ($3,300).

No clear criteria

The section of the law that the court ruled on reads as follows: “Whoever makes a gesture or an indecent act in a public place, so that someone who is in a public place sees or hears it, that imitates the opposite sex in any way, shall be punished by imprisonment for a term not exceeding one year and a fine not exceeding 1,000 dinars, or one of these two penalties”.

A retail member of staff sprays disinfectant on the hands of Kuwaiti visitors at the re-opened 360 Mall in the capital Kuwait City, on July 1, 2020, after 110 days of shutdown to prevent the spread of the novel coronavirus in the country. / AFP / YASSER AL-ZAYYAT

The judges said the text did not include the clear and objective criteria that must be followed "to determine that legally sinful act, and what is considered to be an imitation of the opposite sex and what is not".

"Rather, its phrase was very general and broad, and it could be interpreted with more than one meaning, in a way that its interpretations may be multiple,” read the final conclusion of the court’s ruling, seen by The National.

The application of the law was left “to the authorities in charge of applying it according to their discretion and without any control to restrict them”, the court said, adding that the vague terms of the law had raised concerns about its application.

“[The article] contradicts the keenness of the constitution to guarantee and preserve personal freedom,” the ruling said.

‘Treatment, not imprisonment’

The verdict came after the hearing of a case brought by a Kuwaiti man who was charged under the law.

Lawyer Ali Al Arian told The National that his client identifies as a woman.

The person's medical records, dating back to early childhood, include a doctor's assessment that they have gender dysphoria, the distress caused by someone’s gender identity not matching their biological body, Mr Al Arian said.

“I argued that Article 198 of the penal code is unconstitutional," Mr Al Arian had told The National before the court’s decision.

"This article was amended in 2007 to penalise any form of imitation of the opposite sex. Since that amendment, the Ministry of Interior started applying this law and has been arresting transgender people without taking into consideration the health and mental aspects of their status.”

The Kuwait Bar Association held a symposium last week to debate the constitutionality of the article in question.

Some speakers said that people who “imitate the opposite sex” have psychological disorders and need treatment, not imprisonment.

Transgender people should not be penalised unless sexual provocation is involved," said Mohammed Al Faili, a constitutional expert and professor in the Faculty of Law at Kuwait University.

"The problem is that the law has been unfairly applied when no harm to others has been done, this is why we believe that the law is unconstitutional.”

Updated: February 16, 2022, 12:02 PM