The Middle East has an anti-transgender bills problem

The already marginalised transgender communities of the Middle East have seen their rights dwindle even further in the past several years, as an alarming number of Arab Middle Eastern countries have passed laws restricting or banning their access to gender-affirming health care and legal gender recognition.

The result is that transgender people in these countries are pushed into risky underground medical treatments, or compelled to seek asylum in more tolerant countries rather than stay in places where being transgender is, as one Egyptian activist described it, “a death sentence.”

"Conservative socio-religious narrative has been labelling transgender identities as Western and a danger to the concept of family"

Egypt led the region in cracking down on transgender people: In 2003, the country’s medical syndicate amended its code of ethics and added article 43, which banned doctors from providing any sex-change treatments.

These legal changes are often driven by conservative religious narratives and the façade of protecting the values of society –and resisting the West.

“Conservative socio-religious narrative has been labelling transgender identities as Western and a danger to the concept of family,” says Ayouba El-Hamri, regional coordinator of Transat, a regional transgender advocacy group.

“These legal changes are a product of those narratives and the moral panic religious figures have been promoting against transgender people.”

According to some interpretations of Sharia, a person who wishes to receive gender-affirming health care must prove that they have a "biological need" to do so.

"Countries in the region need to be reminded of their international and national obligations towards their transgender populations, as the right to access adequate health care is enshrined in these nations' constitutions and several international treaties to which these countries are signatories"

Subsequently, a new term was coined in Arabic to describe the kind of surgeries allowed under Sharia, “Sex Correction” or “tṣḥīḥ al-ǧns” in Arabic.

This term refers to sex reassignment treatments for individuals with intersex characteristics, in the same time "sex change" was used to describe treatments for transgender people. This interpretation of Sharia influenced legal changes in the region, as "sex change" was banned and only "sex correction" was allowed.

In Egypt, article 43 stipulated that sex-change medical interventions shall only be allowed after a full chromosome map to ensure that the person has a “biological need” to receive that medical treatment.

It also mandates that gender-affirming health care will be made available only after receiving approval from a sex reassignment committee. 

The committee was established in 2003 to review applications from those who wish to receive gender-affirming health care and included a representative of Al-Azhar – Egypt’s highest religious authority – to ensure that every case is medically compatible with Sharia.

"Other countries in the region followed in Egypt’s footsteps and introduced their ban on sex-change treatment through medical liability laws: the UAE's law no 04/2016, Jordan's law no 25/2018, and Oman’s law no 75/2019"

Violation of this amendment placed doctors under professional and criminal liability, in several incidents after 2003, doctors' professional licenses were revoked or suspended and they were criminally prosecuted under article 244 of Egypt’s panel code for “causing a “permanent disability” to transgender patients.

Medical establishments can also be punished, as in 2010, a hospital was shut down by health officials for providing gender-affirming health care for a transgender person.

Other countries in the region followed in Egypt’s footsteps and introduced their ban on sex-change treatment through medical liability laws: the UAE's law no 04/2016, Jordan's law no 25/2018, and Oman’s law no 75/2019.

Same wordings can be found in these laws as in their Egyptian counterpart, as doctors are prohibited from providing any medical treatment that may result in a change in one’s sex, while sex correction is only allowed after receiving medical approval and providing medical evidence that the individual carries intersex characteristics.

The three laws also provided an almost identical definition of what is considered to be sex change. An extract of the Jordanian law reads: "Any medical intervention which will lead to a sex change to individuals who are born female or male and there is no suspicion on their sex, as proven by their physical features, their physiological, biological, and genetic characteristics." 

On the other hand, Saudi Arabia, which is ruled primarily by Sharia, has issued several medical directives since 2014 to ensure that only individuals with intersex characteristics have access to medical care, establishing a medical committee to review those cases. 

Yasser Jamal, the head of the sex correction surgical centre at King Abdulaziz University Hospital, said in an interview with a local newspaper in 2020: “We follow Sharia in our work; thus, sex correction is good because it corrects a wrong, however, sex change is sinful as it turns what is already correct to a wrong.”

Criminal liability against doctors was not the only impact of these laws. Access to gender-affirming health care became an impossible task for transgender people. Those who were privileged enough could travel abroad to receive the care they needed. Turkey, Iran, and Thailand became popular destinations for those who could afford them.

However, in Egypt, underground medical markets sprung up to take advantage of transgender people’s desperation. Those markets often come with huge risks, as sources of hormones are unknown, and surgeries often take place in ill-equipped home clinics.

In 2021, Ezz El-Din, a 26-year-old transgender man, died after a botched surgery in an underground Egyptian clinic.

"The mismatch between their [transgender] gender identity and their ID papers makes them an easy target for vice police"

Furthermore, legal gender recognition is out of the question, as courts often rely on Sharia to make their judgment on the matter and employ medical opinions to verify whether the person truly has intersex characteristics or not.

In 2019, the UAE’s Federal Supreme Court rejected a request from three transgender men after them falling to prove their “biological need” for the treatment they underwent. While Saudi Arabia’s Civil Status Law article 39 allows for gender marker change, only after providing medical certificates proving the existence of intersex characteristics.

Not receiving legal gender recognition can be viewed as a death sentence for transgender people, as it limits their access to health, education, and employment. Throughout the region, transgender people are one of the most vulnerable groups to social and governmental violence, including, arrest and prosecution under vague morality laws existing in these countries which criminalise “public decency”, “crossdressing” and “sodomy”.

"The mismatch between their gender identity and their ID papers makes them an easy target for vice police," says Maryam Chaine, a Cairo-based lawyer.

“I receive different cases where transgender people are just targeted or harassed for who they are. Even in cases where transgender people are the victim of social attacks, the police arrest them instead. In detention, verbal and physical abuse are common and transgender people are especially targeted because of their identity."

Thus, for many transgender people in the region, seeking asylum or immigration is the only viable solution.

"Being transgender in Egypt or other Middle Eastern countries is a death sentence,” says Salma, an Egyptian transgender activist who now resides in the Netherlands.

“I am not the first or the last person to leave – many of my friends from different countries also left for Europe, and many more will. A drastic change in the region's policies is needed to allow us to breathe."

Several other countries in the region do not have similar laws but may introduce them in the future due to cultural and religious similarities. Bahrain, Syria, and Kuwait are possible candidates for future anti-transgender bills, in the light of how the judiciary in those countries deals with transgender cases.

Judicial opinions reflect the same pattern as in Egypt, Saudi Arabia, and the UAE, as they promote legal gender recognition only for individuals with intersex characteristics and not transgender people.

"Bahrain, Syria, and Kuwait are possible candidates for future anti-transgender bills, in the light of how the judiciary in those countries deals with transgender cases"

Legislative attacks on transgender identities are a unique problem in the Middle East, however, unlike in other regions, the legal changes mentioned in this article – which have made life untenable for many transgender people – have largely gone unnoticed by national and international human rights groups.

Human rights actors, lobbyists, policymakers and national foreign governments need to take a more active approach to address present and future anti-transgender bills in the region.

Countries in the region need to be reminded of their international and national obligations towards their transgender populations, as the right to access adequate health care is enshrined in these nations' constitutions and several international treaties to which these countries are signatories.

Currently, the Egyptian parliament, together with the medical syndicate, is discussing new medical liability law. One can be hopeful that this new law will remove the discriminatory ban that the current code of ethics has enacted on transgender bodies since 2003.

As Egypt was the pioneer in advancing these bans, it could well be a leader in reversing them.

Nora Noralla is a human rights researcher and consultant, working on different issues including sexual and bodily freedoms, and Sharia and human rights

Follow her on Twitter: @NoraNoralla