I wanted to add some of my own thoughts to follow up on her piece, focusing on the frustratingly circular and contradictory nature of this law and its effects.It is interesting that unlike in some countries where police abuse persists against trans people, in Kuwait there is a strong prohibition of sexual harassment against women. What this means in practice is that trans men are rarely targeted due to officers’ fear of falling under this stricture, while trans women are. Kuwait does not yet have a formal legal process for official gender change, so trans women are seen, in the eyes of the law, as men, vulnerable to physical abuse and sexual violence while in custody. Fans of Julia Serano’s work will recognize the strong transmisogyny at play in this environment.The 40 trans women interviewed by HRW have faced various forms of discrimination from sexual harassment to police violence to imprisonment. The scope of this law doesn’t simply touch the isolated incident of a police officer encountering a visibly trans person on the street. In the past five years, article 198 has become woven into the fabric of society so that a trans person is just as likely to be ratted out by a doctor, church official, or employer. Even if no one reports a trans woman, she might be stopped at a random police checkpoint. This creates a climate of fear where trans women are effectively placed under house arrest.
On the one hand, as the excerpt Carrie quoted from the report explains, police officers will use the slightest bit of evidence to show that someone is “imitating” the female gender, including a woman’s smooth skin, soft voice, or the style of her watch. Even if a trans woman wants to comply with the law, she is entirely at the mercy of the police. On the other hand, a trans woman doesn’t have a legal path to transition and thus shed the “opposite gender” problem, because there is no legal way to get a gender change and the law in Kuwait is not settled on sexual reassignment surgery.
Such a situation shows how tenuous the idea of official gender really is. When officials have the discretion to determine what imitating the opposite sex means, it is an individual’s sense of gender norms that dictates. A person doesn’t have to identify as trans to be perceived as “wrong” in an officer’s eyes, nor can a trans person necessarily comply with the law by attempting to dress in a way that matches her genitalia. Ideally, an adult should be able to identify as a chosen gender and seek medical treatment as long as they can demonstrate informed consent, but Kuwait has a long way to go before reaching this standard (articulated in WPATH’s Standards of Care) or even a narrower legal path that requires surgery for official gender change.