In the case, Richard Muasya v. the Hon. Attorney General, High Court of Kenya on 2 December 2010, Muasya lost his case of claiming violations of his constitutional rights, in which he asked for the legalisation of a third gender.
Richard was born with ambiguous genitalia and could therefore not obtain a birth certificate, identity card or passport. He was arrested on 16 March 2005 for aggravated robbery.
“During a routine physical search the prison officers discovered his ambiguous genitalia and consequently could not decide whether to house him in a male or female cell. The Kiuti Magistrates Court ordered that the petitioner be medically examined and the medical report confirmed that he was intersexual. The Magistrates Court then ordered that the petitioner was to be remanded in isolation in the Kiuti Police Station pending trial.
The petitioner was convicted, sentenced to death and sent to a male-only prison for convicts on death row. There the petitioner was made to share cells and facilities with male inmates but was later placed in isolation. It was alleged that while he was in the prison he was subjected to invasive body searches, mockery and abuse because of his condition.”
Despite the Court recognising that Muasya’s condition fitted its definition of intersex, the Court found that because there was no verifiable data about intersex people as a group or class in Kenyan society, the treatment of intersex people was not a matter of public interest. They also found that he did not have a right to legal recognition or protection against discrimination. They also found that he had not been discriminated against in his schooling, employment and that his inability to attain identity documents was his fault and that his inability to vote was therefore his failing. The Court thus ruled that his freedom of movement had not been violated as it was his responsibility to attain the relevant identity documents. The Court also held that the social stigma Muasya suffered was not a legal issue.
The Court found in favour of Muasya’s claim that he had been subjected to inhuman and degrading treatment in prison and he was awarded damages of 500,000 Kenyan Shillings.
During the period leading up to the trial and after, Muasya was sexually abused and his rights violated for 8 years as an intersex person confined with male prisoners in Kamiti Maximum prison.
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