Fatwa And Legislation Department Kuwait

[Venice Sassone]

GenderIdentityDisorder (GID):the formal diagnosis that psychologists and physicians use to describe personswho experience significant gender dysphoria (discontent with their biologicalsex and/or the gender they were assigned at birth). The InternationalStatistical Classification of Diseases and Related Health Problems (ICD-10 CM)and Diagnostic and Statistical Manual of Mental Disorders (DSM-IV TR) classifyGID as a medical disorder. The new version of the DSM due in May 2013 willlikely replace this category with "Gender Dysphoria." Someauthorities do not classify GID or gender dysphoria as a mental illness,describing it instead as a condition for which medical treatment is sometimesappropriate. In Kuwait, GID is a disorder recognized by the Ministry of Health,and the state hospital has issued formal diagnoses to individuals.

Transsexual: a transgender person whohas undergone, or is undergoing, hormone therapies and/or the complex ofcosmetic and reconstructive procedures usually known as sex reassignmentsurgery (SRS) so their physical sex corresponds to their subjectivelyexperienced gender identity. Not all transgender individuals seek to undergoSRS, but for those who wish to, a formal GID diagnosis is usually necessary.

These provisions have created a sea-change in the lives ofKuwaiti transgender women. Many have become the most recent victims of abuse bypolice, who often take advantage of the amendment to article 198 to harass,sexually assault, and arbitrarily arrest them.

Among the abuses transgender women report suffering at thehands of police are beatings and physical abuse with fists and cables, verbaltaunts, and humiliation that includes forcing them to clean toilets and being paradednaked inside the police station. Sexual harassment is also a common complaint.In some cases transgender women reported that police had blackmailed them forsex, threatening them with arrest if they did not comply, an act thatconstitutes sexual assault. Several transgender women have told Human RightsWatch that police use the law and vulnerability of transgender individuals as away to have easy, consequence-free sex.

Transgender women interviewed said they rarely report thepolice mistreatment, abuse, and sexual assault they encounter for fear ofre-arrest, retaliation, and direct threats by the perpetrators, whether civilianor police. These fears are not unfounded; many transsexuals told Human RightsWatch they were arrested simply for going to the police station to report anunrelated crime. According to Ghadeer, a 22-year old transgender woman:

In early 2011 the minister of interior resigned inresponse to several scandals involving police torture. The most notorious case involvedthe death of Mohammad al-Muteiry, who was detained on suspicion of possessingalcohol and tortured for six days at the Ahmadi Criminal InvestigationDepartment.

Article 198 has not just led to arrests and police abuse, ithas permeated every aspect of transgender lives. It does not criminalize anyspecific behavior or act, but mere physical appearance, the acceptableparameters of which are arbitrarily defined by individual police.

Adding to the difficult circumstances that Kuwaiti transgenderpeople face is the lack of any law governing sexual reassignment surgery (SRS),a procedure that some transgender people turn to in order to align their physicalcharacteristics with their gender identity. While there has only been one courtdecision in Kuwait to date granting a transsexual woman permission to changeher gender in her legal identity papers from male to female, which was quicklyoverturned by a court of appeals, there is also no explicit legislation banningthe procedure. In the absence of any law governing sex-change cases, judgesbase their decisions on personal conviction. However, conservative MPs arepushing a bill regulating plastic surgery that includes articles explicitlybanning both SRS and gender correction, a dire prospect for many transgenderindividuals who medically require the procedure as treatment for GenderIdentity Disorder.

Kuwait should take immediate steps to investigateallegations of torture, prosecute those responsible, and implement workingmechanisms to curb future abuses. In order to comply with its obligations underinternational law, Kuwait should impose an immediate moratorium on arrestsunder amended article 198 and repeal the amendment, which in and of itself isvague and overbroad, failing to define the elements of the crime with anyspecificity, and as a result has been applied in an arbitrary manner.Furthermore, the law constitutes discrimination against transgender individuals.The state should allow those diagnosed with GID to change their gender in theirlegal identification papers.

On December 5, 2011, Human Rights Watch sent a letter to theMinistry of Interior outlining the concerns described in this report, but wereceived no response. The letter can be found in the annex of the report.

While the research presented in this report is notcomprehensive or exhaustive, the similarity of the stories and the frequencywith which certain experiences, such as sexual assault, were repeated indicatethat the violations described in this report extend beyond isolated incidentsand constitute a broader pattern of abuse.

In religious arguments against gender transgressive behaviorand presentation the notion of al-fitra(natural constitution) figures quite prominently, resting on the assumption that men imitating women (or vice-versa) violates the natural constitution of human beings. Effeminate men, boyat, and transgender people are thought to contribute to the spread of corruption and the disintegration of society by upsetting this balance.[7]

However, several prominent doctors have advocated for therights of transgender people, including Dr. Hasan Al-Mousawi, a professorof psychiatry at Kuwait University and Dr. Haya Al-Mutairi, head of thepsychiatry department at the Psychological Medicine Hospital, both of whomoppose criminalization.[10]

The following sections examine the broader socio-politicalenvironment and climate of gender regulation in which the amendment to article198 was passed. The law is analyzed through a human rights perspective, followedby a discussion on debates within Islamic jurisprudence on the issue of SRS andlegal gender change in identity.

Two female MPs, Dr Rola Dashti and Aseel Al-Awadhi, appeared in the assembly without wearing the hijab. Three Islamist MPs immediately protested, citing the Sharia rider that was passed with the electoral law. As a result, Dashti tabled an amendment demanding the rider be dropped. The Constitutional Court ruled that the rider in the election law is not specific and so can be interpreted in different ways. The court dismissed a case brought by a Kuwaiti man to have Dashti and Al-Awadi dismissed from the assembly for violating the election law.[15]

Given this long-running controversy within government andsociety over the appropriate roles of men and women, it is not surprising thatparliament would turn its attention towards those who visibly challenge thesegender roles, such as transgender women, by passing a law criminalizing gendernon-conforming appearance, the victims of which have almost invariably beentransgender women.

Furthermore, the law allows the prosecution of individualswho have undergone SRS because there are currently no legal provisions inKuwait that allow individuals to change their legal identities. Manytranssexuals in Kuwait have had partial SRS in other countries such asThailand, Syria, and Lebanon, while others have undergone complete sexreassignment surgery. Between article 198 and the refusal of Kuwaiti courts torecognize SRS, these individuals are left in a state of legal limbo. There isvirtually nothing they can do to avoid arrest, because although they are nowphysically female, their identity cards continue to identify them as male. Rola,a 32-year old transsexual woman who had undergone complete sex reassignmentsurgery in 2004, was arrested five times since the law was passed. The firsttime she was arrested, on July 23, 2008, she spent two months in pre-trialdetention before being declared innocent by a Kuwaiti court. Despite thisruling, police arrested her another four times and released her afterhumiliating her at police stations.[26]

GID is the formal diagnosis that psychologists andphysicians use to describe persons who experience significant gender dysphoria(discontent with their biological sex and/or the gender they were assigned atbirth). The International Statistical Classification of Diseases and RelatedHealth Problems (ICD-10 CM) and Diagnostic and Statistical Manual of MentalDisorders (DSM-IV TR) classify GID as a medical disorder. Some authorities donot classify GID or gender dysphoria as a mental illness, describing it insteadas a condition for which medical treatment is sometimes appropriate.

The Ministry of Health officially has recognized genderidentity disorder in individuals who have received such a diagnosis by thestate-run Psychological Medicine Hospital as a legitimate medical condition andissues formal letters to that effect, which many transgender women carry withthem at all times. Yet the law does not exempt from arrest transgender peoplewho have received such a diagnosis.

Although the state-run psychiatric hospital has issued GIDdiagnoses, the Kuwaiti police, courts, and other government branches do notrecognize it to be a legitimate reason not to arrest and convict people. Accordingto lawyer Abbas Ali, who has defended several cases involving transgender womenand has spoken publicly about the issue, innocent verdicts are issued in courtcases where there is evidence of a GID diagnosis,[35]although one transgender women told Human Rights Watch that the court ignored herGID diagnosis and sentenced her to six months in prison.[36]

Like many other transgender women, Tharwa has a documentfrom the governmental Psychological Medicine Hospital, with seal from theMinistry of Health, stating that she has GID. Not only does this document notprotect her from arrest, but the police refused to include it in her file.[37]Human Rights Watch found this refusal to acknowledge medical reports repeatedin all 19 cases we documented where the reports were presented to the police.In one instance that Human Rights Watch recorded, the Kuwaiti criminal courtissued a suspended six-month jail sentence to Tharwa in November 2009, eventhough she submitted her medical papers confirming her GID diagnosis to thejudge.[38]

3a8082e126