A High Court in Eldoret has recognised the legal identity and constitutional rights of transgender persons in a landmark ruling set to reshape public policy going forward.
The ruling, delivered on August 12, arose from a petition by a transgender woman identified as SC, who was allegedly subjected to degrading treatment while in state custody.
Justice Reuben Nyakundi acknowledged the violations she endured and directed the government to enact a Transgender Protection Rights Act.
Alternatively, the government has been directed to revise and amend the Intersex Persons Bill, 2024, to ensure legal recognition for transgender individuals within the Kenyan legal framework.
Notably, the Intersex Persons Bill, 2024, does not specifically have provisions addressing the woes of the transgender community.
The bill primarily focuses on the recognition and protection of intersex persons, who are defined as "individuals born with sex characteristics that do not fit typical male or female classifications." While prohibiting discrimination against intersex persons, the bill also allows for the amendment of gender markers on official documents.
The petitioner in this specific case was born male but lived and identified as female since childhood. Having obtained a birth certificate and passport with a female sex marker, her case came into the spotlight in June 2019 at Moi Teaching and Referral Hospital in Eldoret, where she was charged with “personation” under Kenya’s Penal Code.
She was initially held in the women's section of a police station before later being transferred to Eldoret Women's Prison. At the time, it was reported that the victim was subjected to non-consensual and humiliating strip searches as well as a court-ordered 'gender determination' procedure.
These tests entailed invasive tests, including examinations of the victim's privates, hormone testing and blood sampling.
Justice Nyakundi, in his ruling, found that the state violated the victim's rights to dignity, privacy, freedom from inhuman and degrading treatment and equality.
From the case, SC was awarded Ksh1 million in damages. The court also directed the Attorney General's office to consider amending the Prisons Act to address vulnerabilities of transgender persons in police custody.
The Kenya Human Rights Commission (KHRC) issued a statement on Sunday, August 24, welcoming the ruling while emphasising that the judgment was key in furthering the conversation on transgender rights.
