On Wednesday, February 16, the constitutional court of Kuwait overturned Article 198 of the country's penal code. Introduced in December 2007, Article 198 of the Kuwaiti Penal Code criminalizes "imitating the appearance of a member of the opposite sex."
The law effectively criminalizes transgender, creating a hostile environment for transgender individuals in Kuwait.
The United Nations Human Rights Committee, in a publication in 2009, has insisted that Article 198 is a violation of the Yogyakarta Principles guaranteed by the International Covenant on Civil and Political Rights, to which Kuwait is a party. The UNHRC recommended that the article be appealed; also to “stop arresting individuals based on their sexual orientation or gender identity or presentation.”
The UN's assertion did not faze the conservative lawmakers who kept the extremely homophobic law. Arrests and convictions were made as late as Oct. 2021, when Maha al-Mutairi was sentenced to two years in prison for being transgender.
In December 2021, a legal challenge against Article 198 was accepted by the Constitutional Court of Kuwait.
After years of campaigning by human rights advocates and weeks of deliberation, the court finally ruled that the law was "inconsistent with the constitution's keenness to ensure and preserve personal freedom."
According to a court statement, Article 198 was unconstitutional because it could not provide "objective standards" in defining the offense. The article used very general language and used ambiguous terms.
The court statement added that the article's lack of a specific definition could cause "miscalculation" in criminal rulings.
Human rights activists and advocacy groups for the LGBTQ community warmly welcomed the breakthrough ruling. Amnesty International called the verdict a breakthrough for transgender rights.
Lynn Maalouf, the Middle East and North Africa Deputy Director for Amnesty International, said the article 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 "The Kuwaiti authorities must now ensure that Article 198 is repealed in its entirety," she added.
Shaikha Salmeen, an activist and a lawyer involved in al-Mutairi's case, welcomed the ruling, calling it "a step in the right direction." However, Salmeen expects conservatives to use their political influence to push back on the ruling. The "fight back is going to be vicious for sure," Salmeen warned.
