Strategic Action Litigation (SAL) is a process in Public Interest Law whereby members of a marginalised group deliberately and proactively take a test case to court for the purpose of establishing a positive legal precedent with legal implications that go beyond the immediate litigants. This specific kind of litigation aims to achieve broader social change. Kenya’s intersex visibility began with such litigation, which saw the country’s intersex rights progress more rapidly than in other African countries. This piece strategically highlights the two court cases that have advanced Intersex advocacy in Kenya. 

The Case of R.M. v. Attorney General & 4 Others (2010), Petition No. 705 of 2007 Kenya, High Court

This landmark legal battle highlighted the rights of intersex persons and challenged the lack of legal recognition and protection for them.

Richard Musya (R.M.), the petitioner in this case, was born intersex, with ambiguous genitalia and raised as male by their parents. The medical and societal understanding of intersex conditions in Kenya, as in many parts of the world, was limited. Intersex persons often faced stigma, discrimination, and pressure to conform to binary gender norms through surgical interventions or other means.

R.M. faced significant challenges related to their intersex status, including difficulties in obtaining legal recognition for employment and marriage, and documents such as a birth certificate that accurately reflected their identity. This lack of documentation affected many aspects of their life, including access to education, healthcare, and social services.

R.M. was later arrested and while awaiting trial, they were isolated because they are intersex. Upon conviction, the petitioner was transferred to a maximum security prison in the male population where they suffered inhuman and degrading treatment at the hands of prison officials.

R.M. brought the case to the High Court of Kenya, arguing that the state had violated their constitutional rights by failing to provide adequate legal recognition and protection for intersex persons. The case was grounded in several constitutional provisions, including the right to dignity, equality, and freedom from discrimination on the basis of sex. R.M. sought the issuance of a birth certificate that accurately reflected their intersex status without forcing a male or female designation. They challenged the systemic discrimination faced by intersex persons in Kenya, advocating for legal and social recognition of their unique identities. The case brought attention to the pressure on intersex persons to undergo unnecessary medical procedures to conform to binary gender norms. 

Throughout the case, various experts, including medical professionals, human rights advocates, and intersex persons, provided testimony on the nature of intersex conditions and the human rights issues involved. The petitioner’s legal team argued that the lack of recognition and the forced binary classification violated R.M.’s fundamental rights.

Judgment

The High Court granted R.M.’s claim for damages for inhuman and degrading treatment at the hands of the state, but rejected all other claims. It pioneered public interest litigation on the challenges faced by intersex persons. It resulted in the Court enshrining the principles of intersex persons being free from cruel, inhumane and degrading treatment or punishment especially during arrest or search. 

E.A. & Another v. Attorney General & 6 others (Baby ‘A’ case) [2014], Petition No. 266 of 2013 Kenya 

Baby A, who was born as an intersex baby with ambiguous genitalia, was marked ‘?’ on their legal documents. 

Baby A’s mother (E.A.), the petitioner in this case, faced several challenges trying to register the birth of her baby which required a determinate sex category as either male or female — categories that her baby did not fit. As a result, her baby was not issued a birth certificate. In these cases, many intersex children are forced to undergo corrective surgery, which undermines their right to self-autonomy and brings about many other challenges later on in their adult life.

E.A. brought the case to the High Court, claiming that not having a birth certificate denies the baby legal recognition (suing for legal discrimination) and the ability to enjoy other rights like the right to education and Medicare care. 

Judgment

The Court found no evidence to support that Baby A had experienced discrimination and held that neither the hospital nor the Court had violated the baby’s rights. The Court confirmed that the baby was intersex and in order to avoid any future discrimination, Baby A and other intersex children must be registered by the registrar of Births and Deaths.

The Court determined that there was a necessity for guidelines, rules, and regulations concerning surgeries on intersex persons, as well as for the government to gather data on intersex persons. However, it also found that it was beyond its jurisdiction to establish such guidelines or oversee data collection and therefore instructed the government to undertake these responsibilities.

Subsequent Developments for the Intersex Community in Kenya

Following these two judgments, there have been ongoing efforts in Kenya to improve the legal framework for intersex persons. This includes advocacy for comprehensive anti-discrimination laws, better healthcare policies, and increased public awareness to reduce stigma and discrimination against intersex people.

The R.M. case was a pivotal moment in advancing the rights of intersex persons in Kenya and across Africa. It set a precedent for legal recognition and protection, prompting discussions on necessary legal and policy reforms to support intersex people. The case also raised awareness about intersex issues, contributing to a broader movement towards greater visibility and acceptance.

The Baby A case triggered reforms on the rights of intersex people in Kenya. In 2014, the Persons Deprived of Liberty Act was enacted and defined “intersex” within Kenyan Legislation for the first time. 

In 2017, the Attorney General formed the Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons. The Taskforce reported to the Kenyan government about the human rights situation of intersex persons in Kenya and recommended law reforms to recognise and protect the rights of intersex persons in Kenya, and called for the collection of statistical data on intersex persons. The resultant inclusion of intersex persons in statistical data in Kenya made Kenya the first African country to include data on intersex people in its census in 2019. 1,524 Intersex persons were counted, a number estimated to be less than the actual number because many numerators did not include the ‘I’ gender marker question and many are still believed to have not disclosed their truth. 

The Attorney General also created the Intersex Persons Implementation Coordination Committee (IPICC), a body established to oversee and coordinate the implementation of policies and programmes concerning the rights and welfare of intersex individuals in Kenya. Following this, the Kenyan president appointed the first intersex commissioner at the Kenya National Commission on Human Rights.

The Children Act, 2022 introduced significant provisions for intersex children. The Act mandates that intersex children are to be treated with respect and given equal access to essential services, including healthcare, education, and social protection. It also condemns discrimination against intersex children in child protection centres and other similar facilities. A key aspect of the law is its protection against non-consensual and unnecessary sex assignment surgeries, stipulating that such procedures should only occur with medical recommendation. Violators of this provision face a minimum fine of $5,000. Although entrusting doctors with decision-making power could pose some risks, this legislation represents a significant step forward and serves as a powerful example for intersex rights advocates throughout Africa.

Strategic Action Litigation has proven to be a vital tool in advancing the rights and protections for intersex persons in Kenya. The continued legal and social efforts are part of a journey that Kenya is on to eventually achieve full recognition and protection of intersex rights. It is a combination of effort from legal practitioners, activists, policymakers, and the community at large. By remaining steadfast in these efforts, there is hope for a future where intersex individuals can live freely and with dignity, enjoying the same rights and protections as all other Kenyan citizens. 

Written by our content contributor, Delphine Barigye