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.

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.