Petitioner was born with intersex conditions, meaning that he had both male and female genitalia, a condition known as intersex. His parents raised him as a male. He claimed that due to his condition, he could not obtain a birth certificate, a prerequisite for obtaining a national identity card. Because he did not have a birth certificate or national identity card, he could not enjoy citizenship rights, including the ability to register as a voter, obtain travel documents, acquire property, and secure employment. He dropped out of school at Class 3, and when he attempted to marry, the law did not recognize his marriage.
Due to the violations of his rights, Petitioner became secluded and was charged with robbery with violence in 2005. While Petitioner was in prison awaiting the determination of his case, the mandatory prison search revealed that he had both male and female genitalia. The petitioner was taken to the hospital for verification of his gender, and the doctor’s report confirmed that he had ambiguous genitalia. As a result, a court order was made to remand Petitioner to the police station during the pendency of his trial. The petitioner was tried, convicted and sentenced to death for robbery with violence. Despite his ambiguous genitalia he was sent to a prison for male death row convicts, where he was forced to share cells and facilities with male inmates. While in prison he experienced abuse, mockery, ridicule, and inhuman treatment, as well as sexual molestation by other male inmates.
Petitioner claimed that the failure of the legal framework to recognize intersex persons infringed his fundamental rights. Petitioner brought this case before the Court seeking redress for sex discrimination and the violation of his rights to dignity, prevention of inhumane treatment, freedom of association, freedom of movement, right to a fair hearing and protection under the law pursuant to the 2010 Kenyan Constitution of (“Constitution”), the Universal Declaration of Human Rights (“UDHR”), and the International Covenant on Civil and Political Rights (“ICCPR”). Petitioner also brought a representative claim (locus standi) for rights violations on behalf of all intersex persons in Kenya.
While the Court enumerated a rather long list of issues for determination, they can largely be summarized as follows:
- Whether the petition was a representative suit, and if so, whether the Court had jurisdiction under Section 84 of the Constitution to consider generally the rights and violations of rights of intersex persons;
- Whether the petitioner was an intersex person, and if so, whether the petitioner, as an intersex person, suffered from a lack of legal recognition and protection under the Constitution and other applicable laws, resulting in violations of the petitioner’s human rights, including the right of everyone to be recognized as a person before the law, the right to equality and non-discrimination as guaranteed under Section 82 of the Constitution, and the constitutionally guaranteed rights to life, liberty and security of the person; and;
- Whether the petitioner suffered violation of his fundamental right to be free from torture, cruel, inhuman, or degrading treatment provided under Section 74 of the Constitution.
The Court discussed the definition of “intersex” and concluded that it describes “an abnormal condition of varying degrees [regarding] the sex constitution of a person.” Based on that definition, the Court determined that Petitioner was an intersex person.
The Court debated whether Petitioner could sue on behalf of the intersex community in Kenya. The Court held that Petitioner and the interested parties and amici curiae who were joined in the matter to support Petitioner’s arguments regarding other intersex persons had failed to provide any evidence that there was a definite number of intersex people in Kenya to form a community of people whose interests he represented. The petitioner’s locus standi with respect to a representative suit was therefore denied and all reference to other intersex persons was struck out of the petition
The Court then examined the issue of discrimination against Petitioner as an intersex person. Petitioner submitted that the Birth and Deaths Registration Act only recognized male or female sexes but not intersex. He argued that the law therefore did not provide legal recognition of him as an intersex person and did not afford him the rights protected by the Constitution. To address the issue, the Court first inquired into the meaning of the term “sex.” The Court sought a definition of the term in the 11th Edition of the Concise Oxford English Dictionary and the Black’s Law Dictionary (8th Edition), and found that “sex simply refers to the categorization of persons into male and female based on their biological differences as evidenced by their reproductive organs.” It was also persuaded by the English decision in Corbett v. Corbett (2 WLR 1306), as well as decisions from other jurisdictions, that a person’s sex is fixed at birth. The Court therefore concluded that the Births and Deaths Registration Act did not in fact exclude the petitioner as an intersex person, since he was either male or female at birth, despite the difficulty posed by the ambiguous genitalia, and thus his birth could have been registered under the Births and Deaths Registration Act if an application had been made. The Court rejected the argument that the term “sex” in Sections 70 and 82 of the Constitution should be interpreted to include intersex as a third category of gender, stating that the term “sex” in those sections encompass only the male and female categories, and the Kenyan legislature had not expanded the meaning of the term sex. Similarly, the Court disagreed with the argument that intersex persons should be brought within the category of “other status” included in Article 2 of the UDHR and Article 26 of the ICCPR. It concluded that intersex persons “are adequately provided for within the Kenyan Constitution as per the ordinary and natural meaning of the term sex,” and to include otherwise would be contrary to legislative intent, indicating that society perhaps was not ready for a third category of gender at that time.
The Court also considered the argument that Petitioner had been discriminated against and disadvantaged socially because of the alleged failure of his legal recognition as an intersex person. The Court indicated that Petitioner’s failure to obtain legal documents including a birth certificate, identity card, and voter’s registration card was his own fault, as neither Petitioner nor his mother had made any efforts to obtain such documentation. The Court also determined that Petitioner had abandoned school because he could not see anything written on the blackboard, not because he was disadvantaged due to his intersex status. The Court also determined that Petitioner’s inability to obtain employment was due to not having an educational background that would make him a stronger candidate for employment. Further, the social problems which he claimed were a result of lack of legal recognition, including inability to marry, were not the result of discriminatory laws. Rather, based on the Court’s determination that each person falls into one of the two categories of gender at birth, the Court determined that Petitioner was not prevented from marrying due to his intersex status, and instead, his biological make-up is what prevented him from being able to marry, as his physiology would not permit him to consummate the marriage as a male.
On whether the law should be reformed to allow Petitioner as an intersex person to determine his gender or define his sexual identity, the Court stated that as an adult Petitioner could do so, including through corrective surgery, but that the government was not at fault for failing to provide the necessary facilities. The Court rationalized that there was no justification for giving corrective surgery economic priority over other government-funded initiatives. The Court also determined that the issues raised regarding the ability of intersex persons to adopt children or parental responsibility for assigning gender to children were not properly brought in the case, as Petitioner had not sought to adopt a child and was beyond the age of maturity. Further, the Court determined that social stigma was not a legal issue, but rather a social issue to be addressed through openness and dissemination of appropriate information. Due to the traditional nature of Kenyan society, the Court believed that Kenyan society had not reached a stage where matters of sexuality could be rationalized through science, and that in any case, it was the Legislature’s mandate to take up such issues.
The Court also rejected Petitioner’s claims that his rights were violated during his criminal trial or that the provisions of the Prisons Act or the Prisons Rules were discriminatory against Petitioner. Petitioner’s detention in the police station was legal because the lower court took his intersex status into account when it ordered his detention in that location. There was no other appropriate location to remand him during his trial, and there were no other defects in the trial identified by Petitioner. In addition, the Court determined that holding Petitioner in a male prison was not a violation of his rights because the Prisons Act allows people of separate genders to be housed in different parts of the same prison, and it was not practical for Petitioner to expect a prison facility for himself alone with prison officers who are intersex or have training in that area, given that no such prison officers were known to exist.
Further, the Court found that Petitioner had not been denied the freedom of movement and association because his freedom of movement was lawfully limited after his arrest due to his alleged criminal activity and was limited prior to his arrest due to his own failure to obtain the necessary documentation. Similarly, the Court stated that Petitioner’s right to privacy had not been violated because the limitations on petitioner’s privacy were legally imposed due to Petitioner’s conviction for a criminal offence.
However, the Court found that Petitioner was treated in an inhuman and degrading manner by prison authorities who conducted strip searches of Petitioner in front of other inmates with the intention of humiliating him for his intersex condition. The Court therefore found that such actions were a violation of Section 74 of the Constitution. The Court awarded damages of Kshs. 500,000 (about $5,000 USD) to Petitioner as redress for violation of his right to dignity and 20% of his costs against the Attorney General and the Commissioner of Prisons.
This case presented novel issues for the Kenyan Court. While intersex status is lumped together with gay, lesbian, transgender/transsexual, and bisexual identities in the collective term LGBTI, intersex status presents unique legal and human rights challenges quite distinct from the other identities.
The Court defined intersex in a negative manner by characterizing it as an “abnormality”. This was unfortunate because such language fuels stigma and shame about individuals’ body. It should instead be recognized that some people are born with physical traits that do not fit neatly into the biological categories of male or female. Article 3(d) of the Convention on the Rights of Persons with Disabilities (“CRPD”), instructs that intersex conditions should be taken as part of human diversity and humanity, and therefore differences should not be justification for discrimination.
Many people with intersex conditions have been subjected to coercive “corrective surgery” or genital mutilation. The rationale behind these surgeries and related therapies is to manipulate the person’s physical traits so they fit into the male/female binary. This type of intervention is usually done at birth, when the person is not capable of consenting. In this petition, the Court did not address the question in depth because it was not at issue. Indeed, surgery may not be a huge concern in Africa because of the cost and unavailability of the technology and skilled personnel on the African continent.
While corrective surgery was not a main topic in the petition, it is noteworthy that the Court’s reasoning aligned with the discriminatory ideology behind corrective surgery, which is to “normalize” the person and make them fit into the male/female binary. Because of this ideological construct, the Court did not find it a problem that laws did not recognize persons with intersex conditions. Everyone would be made to fit, even if uncomfortably, into a male or female category. Failure to recognize intersex persons is to erase, ignore, and make them invisible. The consequences however are not only physical; they are social and psychological, and include stigmatization. By denying difference, society signals rejection of persons who do not conform to socially acceptable traits.
Making persons with intersex conditions disappear through ideological construction creates space for violations of various human rights. For example, if schools do not educate students on the existence of peers with intersex conditions, and socialize them to accept differences, those peers become marked as “other” and objects of ridicule. To curb the risk of exposing persons with intersex conditions to human rights violations, it is necessary for public policy to recognize and accept them. By making them visible, it makes it necessary to protect their rights.
The Court expressed the opinion that “the Kenyan society… [has] not reached the stage where such values involving matters of sexuality can be rationalized or compromised through science.” This judgment feels misplaced given that persons with intersex conditions are born with the condition. One explanation might be that the Court’s sentiments were directed toward transgender persons rather than persons with intersex conditions, illustrating a lack of knowledge on the condition. However, it raises suspicion that this had set the tone of the whole judgment, in which the Court did not accept intersex persons as worthy of recognition under the law.
By denying recognition of intersex as a category distinct from male or female, the Court failed to protect the rights of persons with intersex conditions. The Court could have used this case to introduce a human rights lens into the plight of persons with intersex conditions to become recognized before the government, which could have been a stepping stone for improved jurisprudence on intersex conditions and human rights on the African continent.