Landmark Kenyan Intersexed Case .... "third gender" application to the statutes rejected

A landmark court case filed by Richard Muasya, an intersex person, has been decided by Kenyan High Court judges Hannah Okwengu, Ruth Sitati and George Dulu. Richard Muasya has been awarded Sh500,000 for the inhuman and degrading treatment he experienced at Kamiti Maximum Prison. His request to have a third gender introduced into Kenya’s books of statutes has been rejected. …

MEDIA commentary throughout the trial has focused on religious arguments that instituting a “third sex” or “third gender” will somehow open the floodgates to homosexuality in Kenya.

According to his testimony, Richard Muasya has experienced lifelong persecution simply for being born intersex – such persecution is motivated by the fear that the person in question has somehow been born with a body that is intrinsically homosexual. As a result he was refused a birth certificate and other official documentation throughout his life, making it impossible to live as a normal human being.

Besides the homophobic argument against an official third sex or gender – OII Australia believes that such constructs are not useful to intersex people anyway – the other argument against Muasya is that intersex does not exist in Kenya and that he is the only one in the country.

If that is the case, the Kenya is surely unique among all the world’s nations. In reality, intersex people exist in every nation and in far higher numbers that are commonly believed.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PETITION NO.705 OF 2007

IN THE MATTER OF SECTION 84(1) OF THE CONSTITUTION OF

KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF

FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

UNDER SECTIONS 74(1), 77(1), 82(1), (3) AND (8) OF THE

CONSTITUTION OF KENYA AND BREACHES OF SECTIONS 28,

30, 31 AND 38 OF THE PRISONS ACT CAP 90, RULES 25(1),

103 AND 104 OF THE PRISONS RULES, SECTION 2B AND 7 OF

THE BIRTHS AND DEATHS REGISTRATION

ACT CAP 149

BETWEEN

RICHARD MUASYA………………............PETITIONER/APPLICANT

VERSUS

THE HON. ATTORNEY GENERAL………….........1ST RESPONDENT

(Being sued on his own behalf)

THE COMMISSIONER OF PRISONS……………...2ND RESPONDENT

THE COMMISSIONER OF POLICE……………….3RD RESPONDENT

THE REGISTRAR OF BIRTHS AND DEATHS…4TH RESPONDENT

HON. EVANS K. MAKORI MAGISTRATE………..5TH RESPONDENT

AND

THE KENYA HUMAN RIGHTS COMMISSION………………………………………..1ST AMICUS CURIAE

THE KENYA GAY AND LESBIAN TRUST……2ND AMICUS CURIAE

KENYA NATIONAL COMMISSION FOR

HUMAN RIGHTS…………………………............3RD AMICUS CURIAE

THE LEGAL RESOURCES

FOUNDATION (LRF)……………………1ST INTERESTED PARTY

THE CHILDREN’S RIGHTS ADVISORY

DOCUMENTATION LEGAL

EDUCATION FOUNDATION (CRADLE).2ND INTERESTED PARTY

KITUO CHA SHERIA LEGAL ADVICE

CENTRE………………………………………3RD INTERESTED PARTY

CENTRE FOR RIGHTS, EDUCATION AND

AWARENENSS FOR WOMEN

(CREAW)………………………………………4TH INTERESTED PARTY

KENYA CHRISTIAN LAWYERS

FELLOWSHIP………………………………5TH INTERESTED PARTY

ARGUMENTS IN FAVOUR OF THE PETITION:

Petitioner’s Submissions

15. Mr. Chigiti who argued the petition on behalf of the petitioner, submitted that the petitioner being a person who because of a genetic condition was born with reproductive organs or chromosomes that were not exclusively male or female is an intersexual. Noting that there was no legal definition of an intersex in Kenyan Law, he referred the court to the definition in “The Judicial Matters Amendment Bill, 2005 of South Africa,” which proposed to amend the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA), by introducing a definition of intersex as follows: Intersex means congenital physical sexual differentiation which is atypical to whatever degree. This definition is already included in Section 1of the South African “Alteration of Sex Description and Sex Status Act No.49 of 2003.” Reference was also made to “The Legislation Act 2001” of Australia, which defines an intersex as “a person who because of a genetic condition was born with reproductive organs or sex chromosomes that are not exclusively male or female”.

16. Our attention was drawn to the medical report prepared by Dr. Nyakeri a Medical Officer at Kamiti Prison. This report showed that the petitioner had undeveloped male and female sexual organs, and had male hermaphroditism. It was submitted that in terms of the above referred to definitions, the petitioner was an intersex, the term hermaphrodite being no longer in use. It was argued that as an intersex person, the petitioner has no legal recognition before the law. This is evident in the Births and Deaths Registration Act, Cap 149 Laws of Kenya which makes no mention or reference to intersex. As a result of such omission, the petitioner(and others like him), are not treated equally before the law.

17. An issue was taken with Section 7 of the Births and Deaths Registration Act, which requires every birth to be registered and “prescribed particulars” to be maintained, and Section 2 of the same Act which defines“prescribed particulars” to mean:

“(a) as to any birth, the name, sex, date and place of birth, and the names,residence, occupation and nationality of the parents;

(b) as to any death, the name, age, sex, residence, occupation, and nationality of the deceased, and the date, place and cause of death ---”

18. It was pointed out that in line with the above definition, the forms provided in the schedule in the Births and Deaths Registration Act, made provision for only two check boxes for “male” or “female”. Since the particulars in the forms are the ones that facilitate the issuance of a Birth Certificate, an Applicant must fill either box. Leaving both boxes blank, would result in an Applicant not being issued with the Birth Certificate, a document which is viewed by the petitioner as a very crucial document for his identity.

It was argued that because Form B1 makes no provision for intersex persons, the petitioner and others like him lack legal recognition and statutory protection. It was submitted that there is therefore no equality before the law for intersex persons who are neither male nor female, men or women, boys or girls, him or her.

19. Taking the argument on lack of legal recognition, further it was contended that the issuance of a Birth Certificate to any person under the Births and Deaths Registration Act, means that such a person is recognized and acknowledged as being in existence Such a person then, becomes entitled to a number of human rights.

Such rights include the following:-

 Access to healthcare

 Access to immunization (this is part of healthcare)

 Enrollment in school at the right age

 Enforcement of laws relating to minimum age for employment,

assisting efforts to prevent child labour

 Effectively countering forced marriage of young girls before

they are legally eligible, without proof of marriage

 Protection against under-age military service or conscription

 Protection from child harassment by police and other law

enforcement officers

 Securing a child’s right to nationality either at birth or at a

later date

 Protection against trafficking in children including repatriation

and family reunion

 Getting a passport, opening a bank account, obtaining credit voting or finding employment.

.....................Reliance was placed on the Australian case of Re A (1993), Deakins Law Review, Vol. 9, Issue No. 2 at page 380, wherein the court in regard to a decision to determine gender and give consent to sex correction surgery, held that the decision to proceed with the proposed treatment did not fall within the ordinary scope of parental power to consent to medical treatment. The court proceeded to give consent to the surgery having given due consideration to expert evidence.

49. It was argued that there was need for appropriate legislation or rules and regulations that govern parental responsibility and corrective surgeries on intersexual children. The court was urged to apply the provisions of the Children’s Act 2001 .........................

Please read the entire 94 Paged ruling and background on this landmark petition (PETITION 705.07) in PDF.

also see Kenyan Jurist – The Intersex case

Peace and tolerance.

H

Richard Muasya Ruling