By: Matthew Mayers
Journal of Global Rights and Organizations, Associate Articles Editor
KUWAIT— A judgment issued by Kuwaiti’s Constitutional Court on Wednesday February 16, 2022, held that Article 198 of the penal code was unconstitutional. The court reasoned that the law, which criminalized “imitation of the opposite sex”, lacked an objective analysis for identifying the offense. Accordingly, the law violated Article 30 of the Kuwaiti Constitution, which guarantees personal freedom.
The enactment of Article 198 of the Criminal Code in December 10, 2007, criminalized LGTBQ identities and expression. The law provided that “any person committing an indecent act in a public place or imitating the appearance of a member of the opposite sex, shall be subject to imprisonment for a period not exceeding one year or a fine not exceeding one thousand dinars” (i.e., $3,500). Legal and human rights advocates have argued that the law was vague and arbitrarily enforced. Consequently, on December 29, 2021, the law was challenged in the Constitutional Court.
Since the law’s enactment, it has been used to perpetuate disproportionate arrests and abusive treatment by the Kuwaiti police against the transgender community. In 2012, Human Rights Watch issued a 63-page report documenting the significant discretion Kuwaiti police had over what constituted “imitating the opposite sex”. Transgender women were arrested regardless of if they were wearing gender affirming clothing and were arrested for having a “soft voice” or “smooth skin.” The report also detailed the harms (i.e., rape, sexual assault, and physical assault) that police inflicted among transgender women upon arrest.
The damaging effects of the law has sparked online movements advocating for the release of Kuwait’s LGBTQ persons. Maha al-Mutairi, for example was arrested under Article 198, was fined and sentenced to two years in prison. She used Snapchat, GoFundMe and petition platforms to raise awareness of the abuse she endured from Kuwaiti police officers during her 2019 detention. Her efforts promoted her release and dropped charges on appeal in 2021.
Kuwaiti’s Constitutional Court’s decision is considered a tremendous breakthrough by some. Human rights advocate, Tareq Alkhudari, suggested that since 2020, Kuwait is facing a significant LGBTQ movement with people changing their attitudes and becoming more educated about LGBTQ rights. Lynn Maalouf, Deputy Director of Amnesty International’s Middle East and North Africa Division, however, says that the rights of LGBTQ persons in Kuwait require additional protections. Maalouf says that Kuwait must repeal Article 198, prohibit enforcement of the law, drop all charges and convictions of persons unjustly arrested from the law, and investigate the allegations of police misconduct pursuant to the law.
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