By Nawara Fattahova

KUWAIT: The constitutional court will review article 198 of the penal code, which penalizes imitation of the opposite sex, to check its constitutionality during its session on Feb 16, 2022 and issue a verdict. The Kuwait Bar Association held a symposium to speak about this issue.

Lawyer Ali Al-Aryan submitted the constitutional appeal at the constitutional court. "I found that article 198 of the penal code is unconstitutional. This article was amended in 2007 to penalize any form of imitation of the opposite sex. Since that amendment, the ministry of interior started applying this law and arrested transgenders, who can be imprisoned for up to one year," he noted.

Aryan presented his defense in front of the misdemeanor court, highlighting that the law is in conflict with the constitution. "We demanded that the accused in this case should be checked by psychiatrists to confirm they have gender identity disorder (gender dysphoria). One of the accused had medical reports proving he suffers from this disorder since he was born, and that he underwent psychiatric treatments which were useless and he can't be cured. He is now in his thirties," he said.

"The judge accepted our demand and transferred the accused to a group of psychiatrists, who confirmed that the patient suffers from gender dysphoria. Their report also described the symptoms of this disorder in detail but added it does not impair the patient's ability to differentiate between the sexes. So the judge sentenced him to pay a KD 1,000 fine," Aryan pointed out.

"The constitutional court accepted our appeal over this verdict and set a session during which we presented our evidence, and the verdict should come on February 16, 2022. Our defense highlighted conflict with numerous articles of the constitution. His disorder should be diagnosed by a psychiatrist, who will prove this is a disorder and not a crime," stressed Aryan.

Other conditions

Apart from gender dysphoria, there are other conditions such as transgender disorder that are also included in the MSD Manual, in addition to a long list of genetic, hormonal and psychical disorders, which all lead to behaviors imitating the opposite sex.

According to Aryan, amendment of article 198 was not based on medical and scientific viewpoints. "In 2003, a case of gender change was presented in the court.

The court of first instance, based on forensic medicine, decided on medical rules, although it was later appealed. The first instance court decided that in such cases of gender dysphoria, surgery is necessary and allowed by the sharia. It's not an imitation of the opposite sex, but rather getting back to the prevalent gender. Gender is not only about organs, but also about feelings," he explained.

"There are many reports from forensic medicine admitting the existence of this disorder. Also, various verdicts have confirmed it. So it shouldn't be penalized by law, as it is against the health policies of the government. Furthermore, there are religious fatwas by both Sunni and Shiite scholars that this disorder can be treated by surgery. A few months ago, a verdict was issued against the ministry of interior to compensate a woman who was accused of being a transgender, which was not true. This proves the defect of article 198 of the penal code, which has caused great problems," concluded Aryan.

Dr Nayef Al-Mutawa, professor of clinical psychology at the Faculty of Medicine at Kuwait University, assured that 70 percent of sexual disorders are since birth and not as a result of sexual abuse. "To avoid nasty comments, a person suffering from a sexual disorder gets married, but this marriage doesn't last and he gets divorced soon," he pointed out.

Dr Mohammed Al-Faili, constitutional expert and professor of law at the Faculty of Law at Kuwait University, believes transgenders should not be penalized unless sexual provocation is involved. Dr Mohammed Al-Tamimi, professor of penal code at Kuwait University, also believes transgenders should only be penalized if there is incitement to immorality and prostitution.