INTRODUCTION
1. Before the Court is the Petition dated 27 th January 2020. It is not a Petition that seeks the legal affirmation of transgender status. It is not a Petition that seeks declarations or orders regarding same-gender or transgender marriage. It is not a Petition that seeks to, in any way, interrogate the extent to which the limitations set out under Article 45 of the Constitution apply. It is not a Petition that seeks to challenge any criminal law prohibition on same-gender or transgender intimate relations.
2. Rather, the Petition dated 27 th January 2020 is situated within the ordinary and mundane realm of public administrative law in which the Petitioners are aggrieved with the Respondents’ continued refusal to alter the sex or gender
markers on the birth certificates, national identity cards, and passports of the Petitioners persons; who had earlier lawfully changed their names through Deed Poll processes undertaken through the Respondents and also produced to the Respondents medical evidence of their gender transition.
3. In that regard, the Petition asks a basic constitutional judicial review question: is it lawful for the Respondents, having allegedly created a legitimate expectation and also without reliance on any express provision of law, to remain silent, or to request irrelevant and unnecessary steps or documents, or to informally rely on non-existent law, when seized of a request by the Petitioners or persons in similar circumstances for a change of gender/sex markers on identification documents?
4. The Petition also asks another fundamental question, not about the recognition of samesex marriage or any matter pertaining to sexual orientation, but rather whether inherent to personhood and human dignity is the right of a person to be identified by the State in a manner consistent with their lived reality and core identity, and whether there is a corresponding duty of the State to administer its systems in a way that respects human dignity.
5. The Petitioners are three Kenyan citizens who identify as transgender persons. The 1 st and 2 nd Petitioners were assigned the male sex at birth but live and identify as women. The 3 rd Petitioner was assigned the female sex at birth but lives and identifies as a man. The Petitioners contend that the Respondents’ refusal to amend their identification documents after they had changed their respective names by Deed Poll to names suitable for life as the gender opposite to that assigned at birth, has subjected them to daily humiliation, harassment, discrimination in employment, housing, healthcare, and financial services, and has exposed them to arbitrary arrest and degrading treatment.
6. The Interested Parties, comprising civil society organizations representing transgender and intersex persons, have joined in supporting the Petition, filing extensive factual affidavits and an unchallenged expert psychiatric report on the nature of gender dysphoria.
7. The Petitioners therefore seek the following reliefs from this Court: -
a. A declaration that the Petitioners have a right to equal protection of their identities before the law.
b. A declaration that the State is obligated to recognize and protect the genders identities of the Petitioners as transgender persons.
c. An order that the 2 nd Respondent be and is hereby compelled to amend the names on the birth certificates of the Petitioners so as to reflect their names.
d. An order that the 2 nd Respondent be and is hereby compelled to amend the gender marks on birth certificates of Petitioners so as to reflect their names.
e. An order that the 3 rd Respondent be and is hereby compelled to amend the gender marks on national identity cards of Petitioners so as to reflect their gender identity.
f. An order that the 3 rd Respondent be compelled to change the name of the 3 rd Petitioner in his national identity card so as to reflect his name.
g. An order compelling the 4 th Respondent to amend the gender marks in their passports to reflect their gender identities.
h. Any other order that the Honourable court finds appropriate in the circumstances.
i. Costs and damages.
8. The Respondents oppose the Petition. The 2 nd Respondent, the Principal Registrar of Births and Deaths, filed a Replying Affidavit arguing that the Births and Deaths Registration Act (Cap 149) does not provide for the change of sex particulars after registration and that sex is a biological fact recorded at birth based on physiological features.
9. The 1 st Respondent, the Attorney General, filed Grounds of Opposition alleging, inter alia , that the Petition lacks specificity, that the Petitioners have not demonstrated how their rights have been violated, and that granting the orders sought would compel the State to legally recognize the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community.
10. The 3 rd Respondent (Director of National Registration Bureau) and the 4 th Respondent (Director of Immigration Services) filed no Replying Affidavits or such other responses to the Petition.
11. From the outset the Court wishes to make clear that in these proceedings whenever reference was made to the Petitioners, the Court and the Parties, even those opposing the Petition, adopted the gender pronouns that each of the Petitioners used in referring to themselves. This was in no way a pre-judging of the case by the Court, nor a concession by the Respondents. It was a common courtesy agreed by the Court and all the Parties so as to avoid unnecessary acrimony over an issue that would have had the potential to entirely derail the orderly and expeditious hearing and determination of the Petition on its relative merits.
THE CASE IN SUPPORT OF THE PETITION
12. The 1 st Petitioner, Audrey Mbugua Ithibu, in her Supporting Affidavit sworn on 27 th January 2020, describes a life of persistent and profound gender incongruence. She was born in the year 1984 in what is now Kiambu County, assigned the male sex at birth, and named Andrew Mbugua Ithibu. A copy of her birth certificate is annexed as annexure “AMI-1”.
13. The 1 st Petitioner avers that as early as in nursery school, she preferred to play with girls and engage in their games rather than with boys, for which she was reprimanded by teachers. Throughout primary and high school, she states that she felt different from boys, was bullied, and when she grew facial hair at age fourteen which she found it disgusting. She states that as a teenager she felt deformed and preferred to shower in private as being in proximity to naked boys made her feel uncomfortable as she perceived herself as a girl and not as a boy. After high school, the 1 st Petitioner states that she discovered social spaces in Nairobi where she could wear feminine clothes and be perceived and present herself as a young woman; experiences she describes as “opportunities to be who I felt I was.”
14. The 1 st Petitioner’s Affidavit details a traumatic university experience at the (Redacted ) University. When she plaited her hair in 2003, her father was infuriated and refused to pay her tuition fees until she cut it, asking, “Am I going to say you are my daughter or my son?” She avers that she became severely depressed, engaged in selfdestructive behaviour, and contemplated suicide. At university, she was denied hostel accommodation because her malemarked identification documents conflicted with her female presentation. She avers that she was once forced to share a male hostel room with two male students, leading to humiliation and intrusive questions about her genitalia. In third year, she was raped. Her grades suffered. A clinical officer at the university clinic, after a humiliating interrogation, finally referred to her as a transsexual. Later, a letter from Mathari Hospital dated 12 th March 2013 (annexure “AMI-3”) confirmed that a panel of psychiatrists had evaluated her and diagnosed Gender Identity Disorder (GID), noting that she had already begun the medical and physiological transformation from male to female.
15. The 2 nd Petitioner, Maureen Muia, in her Supporting Affidavit sworn on 27 th January 2020, states at Paragraph 5:
“Since I was a child, I never felt I was a boy, I developed a strong conviction I was a girl and felt at peace living as a girl.”
16. The 2 nd Petitioner states that she completed her KCPE in 1994 and enrolled in a hairdressing course. She confirms that she has transitioned and now lives fully as a woman.
17. The 3 rd Petitioner, Arnest Thaya, in his affidavit, states that he was born as a girl but has always identified and expressed himself as a male. From childhood and throughout adulthood, he states that he identified as a boy and as a man respectively.
18. The factual matrix is significantly reinforced by the Affidavits of the Interested Parties. The 1 st Interested Party, through the Affidavit of Shieys Chepkosgei sworn on 17 th October 2023, provides a harrowing account of the consequences of improper documentation. Shieys was assigned the male sex at birth and named Hillary Kiprotich, but from age five she knew herself as a girl. Her family initially thought she was mentally abnormal ( makararan met in Kalenjin ), but her father later accepted her and called her “cheptanyu” ( my daughter). She obtained a national ID card in the name Hillary Kiprotich. When she attempted to work as a house girl, a person who knew her from home disclosed her assigned sex to her employer, and she lost the job. She was subsequently charged in Eldoret with personation (Eldoret/MCCR/1980/2019) and was acquitted, but another similar charge (Eldoret/MCCR/480/2019) is still pending. Upon arrest, she was placed in male police cells where she was sexually assaulted by two male individuals. She was later transferred to Eldoret Women’s Prison based on her gender presentation. However, when she disclosed her transgender status, officers at the women’s prison conducted an intrusive body search of her genitals. Upon finding that she had a penis, she was returned to court and then to the Eldoret Central Police Station, where male officers forced her to strip completely for physical body inspection. She was then placed in male holding facilities, where she was abused and slapped.
19. The 2 nd Interested Party filed two Affidavits. The first, sworn by Kristen Kiza on 13 th October 2023, details her experience. She was assigned male at birth and named Andrew Gichuru Gitonga. She attended ( Redacted ) Boys’ High School, where she was mistaken for a gay boy and was sexually molested at least six times in Forms 1 and 2, and further abused in Forms 3 and 4. Her father refused to transfer her. She later changed her name by Deed Poll and gazette notice (exhibit “KK-3”) but the Respondents refused to issue new identification documents. She states in Paragraph 24 that she is forced to use an ID card that shows someone other than herself. She avers that she lost her job at ( Redacted ) Limited after her gender identity disorder was discovered. She has been unable to secure employment since, as potential employers see the variance between her female appearance and the male marker on her ID. She has been denied housing, banking services, and mobile money services, and was once denied entry to the ( Redacted: a tier-one Parastatal ) offices, where security guards caused a public commotion and a crowd gathered, forcing her to disclose her transgender status.
20. The second Affidavit of the 2 nd Interested Party was sworn by Tanaka Muren Maritim on 27 th February 2024. He was assigned female at birth and named Moureen Chepkurui Maritim. A copy of his birth certificate is annexure “TMM-1”. As a child, he always played the role of a son in the game ‘ kalongolongo’ and asked to be called ‘Owen’ . At school, he was forced to wear a dress and keep the company of girls. He was shocked and confused when he learned about female puberty. He attempted suicide. He was enrolled in ( Redacted ) Secondary School, an allgirls school, where other students wondered, “Who is that boy that has joined this school?”
21. Mr. Maritim states that in high school he was bullied by older girls. He changed his name by Deed Poll and gazette notice (exhibit “TMM-5”) and now uses the name Tanaka Muren Maritim. However, he states that the Respondents refused to issue a new ID card to reflect the Deed Poll. He filed two applications (26 th October 2021 and 6 th July 2023, exhibits “TMM-6(a) and 6(b)”) without success.
22. Mr. Maritim states that he cannot access MPESA, banking, or health insurance. During the COVID19 pandemic, he was denied treatment because his insurance card did not match his gender expression. He was once arrested for not wearing a mask, and the police officer, seeing his feminine name on his ID, accused him of having a fake ID and refused to put him in a cell with male persons. He presented a medical report from his psychiatrist, Dr. Kemunto S.B. (exhibit “TMM-7 ”), who recommended that changing his name and gender marker would enable him to access health insurance, banking, education, and employment. The Respondents ignored the report.
23. The 2 nd Interested Party also filed a Further Affidavit on 28 th May 2024, with leave of the Court, annexing an Expert Report dated 30 th April 2024 prepared by Dr. Simon PickstoneTaylor MBChB (UCT), a psychiatrist specializing in the transgender condition.
24. Dr. PickstoneTaylor explains that gender identity is not a choice but is at least in part neurologically determined. The Report underscores that a transgender person cannot change their gender identity through any form of therapy, and that denying legal recognition leads to dramatically elevated rates of suicide – a 7.6 times higher rate of suicide attempts in transgender teens as opposed to the normative.
25. The Report also states that the World Health Organization’s ICD11 has moved being transgender out of the mental health chapter into a standalone chapter on sexual health, and the World Health Organization no longer classifies transgender as a disease or disorder.
26. This expert evidence was not challenged or rebutted by the Respondents.
27. The 2 nd Interested Party further filed the affidavit of Frankie Robert Kibagendi, an intersex person, sworn on 9 th September 2024. Mr. Kibagendi was assigned the female sex at birth and named Francisca Kwamboka Kibagendi. He later applied to change his name and sex/gender marker. Mr. Kibagendi states that the 2 nd Respondent changed his birth certificate to reflect the name Frankie Robert Kibagendi and changed the female sex marker to a male sex marker. He also states that the 3 rd Respondent changed his Kenya National Identity Card accordingly. He also states that he was was not required to undergo any surgery or hormonal treatment.
28. The 2 nd Interested Party contends that this evidence is critical as it demonstrates that the Respondents have the administrative capacity to change sex markers on documents and have in fact done so for intersex persons but without any legal basis are denying the same to persons who are transgender.
29. The 3 rd Interested Party filed two Affidavits. The first, sworn by Arya Jeipea Karijo on 22 nd October 2024, describes her experience as a transgender woman. She was assigned male at birth and named John Paul Mugambi Karijo. She changed her name by Deed Poll and gazette notice (exhibit “AJK-3”) and her ID card and passport were changed to reflect the name Arya Jeipea Karijo. However, the sex/gender marker on both documents remains “male”.
30. Ms. Karijo states that this has caused her extreme distress when travelling. In ( Redacted: foreign airport in Africa ) in 2022, she was forced to strip for a security check after an airport scanner probably picked up something in her pants. It is her testimony that the security personnel in that foreign African airport indicated to her that things would have been easier if her passport had indicated she was a transgender person.
31. At Moi International Airport Mombasa in 2020, she states that she was accused of having someone else’s passport and asked to produce a medical report. Her yellow fever vaccination certificate also indicates “male”, raising questions every time she travels. She further states that her medical expenses are rarely covered by insurance without intrusive questioning.
32. The second Affidavit of the 3 rd Interested Party was sworn by Adrian King Kibe. He was assigned female at birth and named Grace Wangechi Kibe. He changed his name to Adrian King Kibe, and his new ID card (annexure “ AKK-4 ”) reflects the name Adrian King Kibe. However, the sex/gender marker remains “female”. He states that he has experienced great difficulty in obtaining gainful employment due to this variance. An email from his current employer, the Kenya Human Rights Commission (annexure “AKK-5” ), explains that he could only be engaged as a consultant, not as an employee, because of the challenges with his registration documents. Mr. Kibe further states that he cannot access health insurance or the National Social Security Insurance Fund.
33. The Petitioners, through their written submissions, argue that the Respondents’ refusal to change the sex or gender markers on their birth certificates, national identity cards, and passports constitutes a direct and ongoing violation of Articles 12 (right to citizenship and associated documents), 27 (equality and freedom from discrimination), 28 (human dignity), 29 (freedom and security of the person), 31 (privacy), 33 (freedom of expression), and 47 (fair administrative action). They contend that the purpose of an identification document is to accurately identify the holder. When the document proclaims a sex that is contrary to the holder’s physical appearance, lived identity, and medical reality; the document ceases to serve its purpose and instead becomes an instrument of humiliation, discrimination, and danger.
34. On the interpretation of the Births and Deaths Registration Act, the Petitioners argue that while Cap 149 does not expressly provide for a change of sex marker, it also does not prohibit it. They rely on Section 28 of Cap 149, which empowers the Principal Registrar to correct any error or omission in the register. They submit that the mismatch between the sex assigned at birth (based on a brief observation of external genitalia) and the individual’s subsequent psychological and medical development constitutes an error or omission that the Registrar has a duty to correct.
35. The Petitioners invoke the principle of generous and purposive interpretation of the Constitution as mandated by Article 259(1). They cite the High Court of Botswana’s decision in ND v Attorney General of Botswana , where the Court held that a constitution must be interpreted as a living document, capable of adapting to a changing world, “otherwise, rights declared in words may be lost in reality.”
36. They also rely heavily on the Supreme Court of India’s landmark judgment in National Legal Services Authority v Union of India, 2014 INSC 275 (the NALSA case), where the Indian Apex Court recognized transgender persons as a third gender and affirmed their right to be identified in official documents in accordance with their selfperceived gender identity. The Petitioners submit that the same principles apply in Kenya, given the similar Bill of Rights protections.
37. The Petitioners further argue that the Respondents’ actions are not reasonable or justifiable limitations under Article 24. The absence of specific legislation is not a valid reason to limit fundamental rights. To the Petitioners’ minds, the speculative fear of administrative chaos advanced by the Respondents is not supported by any evidence. The fact that the Respondents have already changed the sex marker for an intersex person (Frankie Robert Kibagendi) demonstrates that the system can accommodate such changes without disruption. The argument that granting the orders would “legalize the LGBTQ community” is said by the Petitioner to be a nonsequitur and an improper ground for limiting constitutional rights. The Petitioners therefore urge the Court to allow the Petition and grant the prayers sought.
38. In support, the 1 st Interested Party (Amka Africa Justice Initiative) filed written submissions in support of the Petition, relying on extensively on the affidavit of Shieys Chepkosgei discussed elsewhere above.
39. The 1 st Interested Party argues that the Respondents have violated Articles 12, 27, 28, 29, 31, 33, and 47, and that the limitations imposed are not reasonable or justifiable under Article 24.
40. The 2 nd Interested Party (Jinsiangu Kenya) filed written submissions focusing on the medical and scientific understanding of gender identity, relying on the Expert Report of Dr. PickstoneTaylor and the affidavits of Kristen Kiza, Tanaka Muren, and Frankie Robert Kibagendi. The 2 nd Interested Party urges the Court to recognize that transgender persons do not choose their gender identity and cannot change it through therapy, and that legal recognition is essential for their mental health and dignity.
41. The 3 rd Interested Party (Kenya Human Rights Commission) filed written submissions that canvassed the affidavits of Arya Jeipea Karijo and Adrian King Kibe, highlighting the practical consequences of the refusal to change gender markers, including loss of employment and inability to access insurance.
THE RESPONDENTS’ CASE
42. The 2 nd Respondent filed a Replying Affidavit sworn by Shumary Malleon on 21 st February 2022. At Paragraph 9, the Deponent states that:
“The issue of intersex and transgender persons is an emerging area that is not provided for in the Births and Deaths Registration Act that the 2nd Respondent is currently grappling with.”
43. At Paragraphs 11 and 12, the Deponent states that the Births and Deaths Registration Act only recognizes the biological aspect of sex, and that in practice the identification of sex during registration is based on physiological features seen by the person attending the birth.
44. At Paragraph 14, the Deponent avers that “the names given to an individual for purposes of registration, at all times automatically match the respective sex of the registered person so much so that any deviation is procedurally flagged out as an error.”
45. At Paragraph 19, the Shumary Malleon states that the Act does not envisage a situation where the biological facts of sex recorded can be altered on demand other than on fact. The 2 nd Respondent therefore does not deny that a change may be possible if a factual basis is shown, such as for intersex persons, but argues that gender reassignment on demand is not provided for.
46. The other Respondents, through the Attorney General, filed Grounds of Opposition dated 18 th February 2022 but no affidavits. The grounds can be summarized as follows:
a. that the Petitioners have not demonstrated how the Respondents have violated their constitutional rights, that the Petition lacks the specificity required by the principle in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272 ;
b. that the 2 nd Respondent’s operational statute does not provide for change of sex particulars after registration;
c. that the Petition raises a technical matter that may only be dispensed with on medical grounds;
d. that if the Court grants the orders sought, it will be compelling the government to “legalize the LGBTQ community ”;
e. that the Petition is mischievous as it does not clearly spell out to what gender the Petitioners want to change their identity;
f. that the Petitioners were clearly assigned a gender mark at birth;
g. that the Respondents’ actions are within their statutory mandate;
h. that the Petition seeks an order against a “4 th Respondent” who is not sued as a party; AND
i. that the Court would be overstretching its mandate if the orders are granted and that the Petition is incompetent, misconceived, and an abuse of process.
47. The 2 nd Respondent does not deny that a change of particulars may be possible if a factual error is shown. However, the 2 nd Respondent argues that the Act does not provide for change of sex on account of gender reassignment, and that sex is a biological fact based on physiological features observed at birth.
48. The 2 nd Respondent distinguishes between sex (a prescribed particular) and gender (which the deponent describes as a societal or selfdriven construction that is not physiologically evident and therefore not a prescribed particular). The 2 nd Respondent admits that it is “grappling with” the issue of transgender persons and is awaiting guidance from the Kenya Medical Practitioners and Dentists Board, even though the Petitioners have pointed out that the Board has disclaimed any statutory mandate to provide such guidance.
49. Through the Respondents’ collective written submissions filed on 22 nd October 2024, the 1 st Respondent expands on these grounds. The written submissions argue that Section 10 of Cap 149 requires the person notifying a birth to give the prescribed particulars, including sex, to the best of their knowledge and ability, and that this is based on physiological features. The written submissions rely on the dissenting opinion in NGOs Coordination Board v EG & 4 others, Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR), where it was stated that the word “sex” in the Constitution is used in reference to a person’s sexual anatomy based on sex chromosomes.
50. The Respondents’ written submissions also argue that the law does not contemplate a change of gender marks on account of being transgender, and that what the Petitioners seek is a change based on “feelings,” which is not recognized in law. The submissions also argue that the Petition lacks specificity and that the 3 rd Petitioner has not demonstrated that he was denied an ID card. The Respondents urge the Court to dismiss the Petition with costs.
ANALYSIS AND DETERMINATION
51. Having carefully examined the Petition, the affidavits and annexures placed before the Court, the Expert Report, the Grounds of Opposition, the respective written and oral submissions of the parties and Interested Parties, together with the applicable constitutional, statutory, and comparative legal authorities, this Court is satisfied that the following issues arise for determination :
i. Whether the Petitioners, as transgender persons, are entitled to the protection of the rights and fundamental freedoms enshrined in the Bill of Rights, particularly under Articles 27, 28, 29, 31, 33, and 47 of the Constitution;
ii. Whether the Respondents’ refusal to change the sex or gender markers on the Petitioners’ birth certificates, national identity cards, and passports to align with their gender identity constitutes a violation of those constitutional rights;
iii. Whether the Respondents’ actions, including the failure of the 3 rd and 4 th Respondents to file any replying affidavit or provide any justification, are reasonable and justifiable limitations of the Petitioners’ rights under Article 24 of the Constitution; AND
iv. What is the proper interpretation of the Constitution and the relevant statutes (Cap 149 and Cap 107) in light of the emerging understanding of gender identity; and what relief, if any, should this Court grant to the Petitioners.
Whether the Petitioners, as transgender persons, are entitled to the protection of the rights and fundamental freedoms enshrined in the Bill of Rights, particularly under Articles 27, 28, 29, 31, 33, and 47 of the Constitution
52. This Court is called upon, at the threshold, to determine a foundational question which, though seemingly elementary, is determinative of the entire architecture of this judgment: whether the Petitioners, by virtue of being transgender persons, fall within the protective scope of the Bill of Rights in respect of their gender identity.
53. While the Respondents do not expressly contend that transgender persons are excluded from constitutional protection, the tenor and implication of their arguments that the law does not recognize a change of sex marker based on chosen gender identity necessarily raises the question whether the Petitioners’ asserted identity has any legal relevance within the constitutional order.
54. The starting point is Article 19(3)(a) of the Constitution, which provides that:
“the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.”
55. The phrase “each individual” is deliberately unqualified. It admits of no textual limitation based on sex assigned at birth, biological characteristics, or conformity with socially assigned gender categories.
56. Throughout the length and breadth of the Bill of Rights, the Constitution employs deliberately expansive language to ensure the universality of rights protection. This universality is not incidental but foundational to the transformative character of the 2010 Constitution. Pursuant to Article 20(1), the Bill of Rights binds all State organs and all persons. Read together with Article 19(3), it is evident that rights attach to the individual as such, and not to any preconditioned classification of personhood. There is therefore no constitutional basis upon which this Court can carve out an excluded category of persons from the protection of the Bill of Rights, or whom are inherently excluded ab initio from putative coverage under the Bill of Rights.
57. This is not to say that as a individuals or group within the ambit of the Bill of Rights, transgender persons enjoy unlimited rights. With the exception of the rights under Article 25, all other rights in the Bill
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1. Before the Court is the Petition dated 27 th January 2020. It is not a Petition that seeks the legal affirmation of transgender status. It is not a Petition that seeks declarations or orders regarding same-gender or transgender marriage. It is not a Petition that seeks to, in any way, interrogate the extent to which the limitations set out under Article 45 of the Constitution apply. It is not a Petition that seeks to challenge any criminal law prohibition on same-gender or transgender intimate relations.
2. Rather, the Petition dated 27 th January 2020 is situated within the ordinary and mundane realm of public administrative law in which the Petitioners are aggrieved with the Respondents’ continued refusal to alter the sex or gender
markers on the birth certificates, national identity cards, and passports of the Petitioners persons; who had earlier lawfully changed their names through Deed Poll processes undertaken through the Respondents and also produced to the Respondents medical evidence of their gender transition.
3. In that regard, the Petition asks a basic constitutional judicial review question: is it lawful for the Respondents, having allegedly created a legitimate expectation and also without reliance on any express provision of law, to remain silent, or to request irrelevant and unnecessary steps or documents, or to informally rely on non-existent law, when seized of a request by the Petitioners or persons in similar circumstances for a change of gender/sex markers on identification documents?
4. The Petition also asks another fundamental question, not about the recognition of samesex marriage or any matter pertaining to sexual orientation, but rather whether inherent to personhood and human dignity is the right of a person to be identified by the State in a manner consistent with their lived reality and core identity, and whether there is a corresponding duty of the State to administer its systems in a way that respects human dignity.
5. The Petitioners are three Kenyan citizens who identify as transgender persons. The 1 st and 2 nd Petitioners were assigned the male sex at birth but live and identify as women. The 3 rd Petitioner was assigned the female sex at birth but lives and identifies as a man. The Petitioners contend that the Respondents’ refusal to amend their identification documents after they had changed their respective names by Deed Poll to names suitable for life as the gender opposite to that assigned at birth, has subjected them to daily humiliation, harassment, discrimination in employment, housing, healthcare, and financial services, and has exposed them to arbitrary arrest and degrading treatment.
6. The Interested Parties, comprising civil society organizations representing transgender and intersex persons, have joined in supporting the Petition, filing extensive factual affidavits and an unchallenged expert psychiatric report on the nature of gender dysphoria.
7. The Petitioners therefore seek the following reliefs from this Court: -
a. A declaration that the Petitioners have a right to equal protection of their identities before the law.
b. A declaration that the State is obligated to recognize and protect the genders identities of the Petitioners as transgender persons.
c. An order that the 2 nd Respondent be and is hereby compelled to amend the names on the birth certificates of the Petitioners so as to reflect their names.
d. An order that the 2 nd Respondent be and is hereby compelled to amend the gender marks on birth certificates of Petitioners so as to reflect their names.
e. An order that the 3 rd Respondent be and is hereby compelled to amend the gender marks on national identity cards of Petitioners so as to reflect their gender identity.
f. An order that the 3 rd Respondent be compelled to change the name of the 3 rd Petitioner in his national identity card so as to reflect his name.
g. An order compelling the 4 th Respondent to amend the gender marks in their passports to reflect their gender identities.
h. Any other order that the Honourable court finds appropriate in the circumstances.
i. Costs and damages.
8. The Respondents oppose the Petition. The 2 nd Respondent, the Principal Registrar of Births and Deaths, filed a Replying Affidavit arguing that the Births and Deaths Registration Act (Cap 149) does not provide for the change of sex particulars after registration and that sex is a biological fact recorded at birth based on physiological features.
9. The 1 st Respondent, the Attorney General, filed Grounds of Opposition alleging, inter alia , that the Petition lacks specificity, that the Petitioners have not demonstrated how their rights have been violated, and that granting the orders sought would compel the State to legally recognize the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community.
10. The 3 rd Respondent (Director of National Registration Bureau) and the 4 th Respondent (Director of Immigration Services) filed no Replying Affidavits or such other responses to the Petition.
11. From the outset the Court wishes to make clear that in these proceedings whenever reference was made to the Petitioners, the Court and the Parties, even those opposing the Petition, adopted the gender pronouns that each of the Petitioners used in referring to themselves. This was in no way a pre-judging of the case by the Court, nor a concession by the Respondents. It was a common courtesy agreed by the Court and all the Parties so as to avoid unnecessary acrimony over an issue that would have had the potential to entirely derail the orderly and expeditious hearing and determination of the Petition on its relative merits.
THE CASE IN SUPPORT OF THE PETITION
12. The 1 st Petitioner, Audrey Mbugua Ithibu, in her Supporting Affidavit sworn on 27 th January 2020, describes a life of persistent and profound gender incongruence. She was born in the year 1984 in what is now Kiambu County, assigned the male sex at birth, and named Andrew Mbugua Ithibu. A copy of her birth certificate is annexed as annexure “AMI-1”.
13. The 1 st Petitioner avers that as early as in nursery school, she preferred to play with girls and engage in their games rather than with boys, for which she was reprimanded by teachers. Throughout primary and high school, she states that she felt different from boys, was bullied, and when she grew facial hair at age fourteen which she found it disgusting. She states that as a teenager she felt deformed and preferred to shower in private as being in proximity to naked boys made her feel uncomfortable as she perceived herself as a girl and not as a boy. After high school, the 1 st Petitioner states that she discovered social spaces in Nairobi where she could wear feminine clothes and be perceived and present herself as a young woman; experiences she describes as “opportunities to be who I felt I was.”
14. The 1 st Petitioner’s Affidavit details a traumatic university experience at the (Redacted ) University. When she plaited her hair in 2003, her father was infuriated and refused to pay her tuition fees until she cut it, asking, “Am I going to say you are my daughter or my son?” She avers that she became severely depressed, engaged in selfdestructive behaviour, and contemplated suicide. At university, she was denied hostel accommodation because her malemarked identification documents conflicted with her female presentation. She avers that she was once forced to share a male hostel room with two male students, leading to humiliation and intrusive questions about her genitalia. In third year, she was raped. Her grades suffered. A clinical officer at the university clinic, after a humiliating interrogation, finally referred to her as a transsexual. Later, a letter from Mathari Hospital dated 12 th March 2013 (annexure “AMI-3”) confirmed that a panel of psychiatrists had evaluated her and diagnosed Gender Identity Disorder (GID), noting that she had already begun the medical and physiological transformation from male to female.
15. The 2 nd Petitioner, Maureen Muia, in her Supporting Affidavit sworn on 27 th January 2020, states at Paragraph 5:
“Since I was a child, I never felt I was a boy, I developed a strong conviction I was a girl and felt at peace living as a girl.”
16. The 2 nd Petitioner states that she completed her KCPE in 1994 and enrolled in a hairdressing course. She confirms that she has transitioned and now lives fully as a woman.
17. The 3 rd Petitioner, Arnest Thaya, in his affidavit, states that he was born as a girl but has always identified and expressed himself as a male. From childhood and throughout adulthood, he states that he identified as a boy and as a man respectively.
18. The factual matrix is significantly reinforced by the Affidavits of the Interested Parties. The 1 st Interested Party, through the Affidavit of Shieys Chepkosgei sworn on 17 th October 2023, provides a harrowing account of the consequences of improper documentation. Shieys was assigned the male sex at birth and named Hillary Kiprotich, but from age five she knew herself as a girl. Her family initially thought she was mentally abnormal ( makararan met in Kalenjin ), but her father later accepted her and called her “cheptanyu” ( my daughter). She obtained a national ID card in the name Hillary Kiprotich. When she attempted to work as a house girl, a person who knew her from home disclosed her assigned sex to her employer, and she lost the job. She was subsequently charged in Eldoret with personation (Eldoret/MCCR/1980/2019) and was acquitted, but another similar charge (Eldoret/MCCR/480/2019) is still pending. Upon arrest, she was placed in male police cells where she was sexually assaulted by two male individuals. She was later transferred to Eldoret Women’s Prison based on her gender presentation. However, when she disclosed her transgender status, officers at the women’s prison conducted an intrusive body search of her genitals. Upon finding that she had a penis, she was returned to court and then to the Eldoret Central Police Station, where male officers forced her to strip completely for physical body inspection. She was then placed in male holding facilities, where she was abused and slapped.
19. The 2 nd Interested Party filed two Affidavits. The first, sworn by Kristen Kiza on 13 th October 2023, details her experience. She was assigned male at birth and named Andrew Gichuru Gitonga. She attended ( Redacted ) Boys’ High School, where she was mistaken for a gay boy and was sexually molested at least six times in Forms 1 and 2, and further abused in Forms 3 and 4. Her father refused to transfer her. She later changed her name by Deed Poll and gazette notice (exhibit “KK-3”) but the Respondents refused to issue new identification documents. She states in Paragraph 24 that she is forced to use an ID card that shows someone other than herself. She avers that she lost her job at ( Redacted ) Limited after her gender identity disorder was discovered. She has been unable to secure employment since, as potential employers see the variance between her female appearance and the male marker on her ID. She has been denied housing, banking services, and mobile money services, and was once denied entry to the ( Redacted: a tier-one Parastatal ) offices, where security guards caused a public commotion and a crowd gathered, forcing her to disclose her transgender status.
20. The second Affidavit of the 2 nd Interested Party was sworn by Tanaka Muren Maritim on 27 th February 2024. He was assigned female at birth and named Moureen Chepkurui Maritim. A copy of his birth certificate is annexure “TMM-1”. As a child, he always played the role of a son in the game ‘ kalongolongo’ and asked to be called ‘Owen’ . At school, he was forced to wear a dress and keep the company of girls. He was shocked and confused when he learned about female puberty. He attempted suicide. He was enrolled in ( Redacted ) Secondary School, an allgirls school, where other students wondered, “Who is that boy that has joined this school?”
21. Mr. Maritim states that in high school he was bullied by older girls. He changed his name by Deed Poll and gazette notice (exhibit “TMM-5”) and now uses the name Tanaka Muren Maritim. However, he states that the Respondents refused to issue a new ID card to reflect the Deed Poll. He filed two applications (26 th October 2021 and 6 th July 2023, exhibits “TMM-6(a) and 6(b)”) without success.
22. Mr. Maritim states that he cannot access MPESA, banking, or health insurance. During the COVID19 pandemic, he was denied treatment because his insurance card did not match his gender expression. He was once arrested for not wearing a mask, and the police officer, seeing his feminine name on his ID, accused him of having a fake ID and refused to put him in a cell with male persons. He presented a medical report from his psychiatrist, Dr. Kemunto S.B. (exhibit “TMM-7 ”), who recommended that changing his name and gender marker would enable him to access health insurance, banking, education, and employment. The Respondents ignored the report.
23. The 2 nd Interested Party also filed a Further Affidavit on 28 th May 2024, with leave of the Court, annexing an Expert Report dated 30 th April 2024 prepared by Dr. Simon PickstoneTaylor MBChB (UCT), a psychiatrist specializing in the transgender condition.
24. Dr. PickstoneTaylor explains that gender identity is not a choice but is at least in part neurologically determined. The Report underscores that a transgender person cannot change their gender identity through any form of therapy, and that denying legal recognition leads to dramatically elevated rates of suicide – a 7.6 times higher rate of suicide attempts in transgender teens as opposed to the normative.
25. The Report also states that the World Health Organization’s ICD11 has moved being transgender out of the mental health chapter into a standalone chapter on sexual health, and the World Health Organization no longer classifies transgender as a disease or disorder.
26. This expert evidence was not challenged or rebutted by the Respondents.
27. The 2 nd Interested Party further filed the affidavit of Frankie Robert Kibagendi, an intersex person, sworn on 9 th September 2024. Mr. Kibagendi was assigned the female sex at birth and named Francisca Kwamboka Kibagendi. He later applied to change his name and sex/gender marker. Mr. Kibagendi states that the 2 nd Respondent changed his birth certificate to reflect the name Frankie Robert Kibagendi and changed the female sex marker to a male sex marker. He also states that the 3 rd Respondent changed his Kenya National Identity Card accordingly. He also states that he was was not required to undergo any surgery or hormonal treatment.
28. The 2 nd Interested Party contends that this evidence is critical as it demonstrates that the Respondents have the administrative capacity to change sex markers on documents and have in fact done so for intersex persons but without any legal basis are denying the same to persons who are transgender.
29. The 3 rd Interested Party filed two Affidavits. The first, sworn by Arya Jeipea Karijo on 22 nd October 2024, describes her experience as a transgender woman. She was assigned male at birth and named John Paul Mugambi Karijo. She changed her name by Deed Poll and gazette notice (exhibit “AJK-3”) and her ID card and passport were changed to reflect the name Arya Jeipea Karijo. However, the sex/gender marker on both documents remains “male”.
30. Ms. Karijo states that this has caused her extreme distress when travelling. In ( Redacted: foreign airport in Africa ) in 2022, she was forced to strip for a security check after an airport scanner probably picked up something in her pants. It is her testimony that the security personnel in that foreign African airport indicated to her that things would have been easier if her passport had indicated she was a transgender person.
31. At Moi International Airport Mombasa in 2020, she states that she was accused of having someone else’s passport and asked to produce a medical report. Her yellow fever vaccination certificate also indicates “male”, raising questions every time she travels. She further states that her medical expenses are rarely covered by insurance without intrusive questioning.
32. The second Affidavit of the 3 rd Interested Party was sworn by Adrian King Kibe. He was assigned female at birth and named Grace Wangechi Kibe. He changed his name to Adrian King Kibe, and his new ID card (annexure “ AKK-4 ”) reflects the name Adrian King Kibe. However, the sex/gender marker remains “female”. He states that he has experienced great difficulty in obtaining gainful employment due to this variance. An email from his current employer, the Kenya Human Rights Commission (annexure “AKK-5” ), explains that he could only be engaged as a consultant, not as an employee, because of the challenges with his registration documents. Mr. Kibe further states that he cannot access health insurance or the National Social Security Insurance Fund.
33. The Petitioners, through their written submissions, argue that the Respondents’ refusal to change the sex or gender markers on their birth certificates, national identity cards, and passports constitutes a direct and ongoing violation of Articles 12 (right to citizenship and associated documents), 27 (equality and freedom from discrimination), 28 (human dignity), 29 (freedom and security of the person), 31 (privacy), 33 (freedom of expression), and 47 (fair administrative action). They contend that the purpose of an identification document is to accurately identify the holder. When the document proclaims a sex that is contrary to the holder’s physical appearance, lived identity, and medical reality; the document ceases to serve its purpose and instead becomes an instrument of humiliation, discrimination, and danger.
34. On the interpretation of the Births and Deaths Registration Act, the Petitioners argue that while Cap 149 does not expressly provide for a change of sex marker, it also does not prohibit it. They rely on Section 28 of Cap 149, which empowers the Principal Registrar to correct any error or omission in the register. They submit that the mismatch between the sex assigned at birth (based on a brief observation of external genitalia) and the individual’s subsequent psychological and medical development constitutes an error or omission that the Registrar has a duty to correct.
35. The Petitioners invoke the principle of generous and purposive interpretation of the Constitution as mandated by Article 259(1). They cite the High Court of Botswana’s decision in ND v Attorney General of Botswana , where the Court held that a constitution must be interpreted as a living document, capable of adapting to a changing world, “otherwise, rights declared in words may be lost in reality.”
36. They also rely heavily on the Supreme Court of India’s landmark judgment in National Legal Services Authority v Union of India, 2014 INSC 275 (the NALSA case), where the Indian Apex Court recognized transgender persons as a third gender and affirmed their right to be identified in official documents in accordance with their selfperceived gender identity. The Petitioners submit that the same principles apply in Kenya, given the similar Bill of Rights protections.
37. The Petitioners further argue that the Respondents’ actions are not reasonable or justifiable limitations under Article 24. The absence of specific legislation is not a valid reason to limit fundamental rights. To the Petitioners’ minds, the speculative fear of administrative chaos advanced by the Respondents is not supported by any evidence. The fact that the Respondents have already changed the sex marker for an intersex person (Frankie Robert Kibagendi) demonstrates that the system can accommodate such changes without disruption. The argument that granting the orders would “legalize the LGBTQ community” is said by the Petitioner to be a nonsequitur and an improper ground for limiting constitutional rights. The Petitioners therefore urge the Court to allow the Petition and grant the prayers sought.
38. In support, the 1 st Interested Party (Amka Africa Justice Initiative) filed written submissions in support of the Petition, relying on extensively on the affidavit of Shieys Chepkosgei discussed elsewhere above.
39. The 1 st Interested Party argues that the Respondents have violated Articles 12, 27, 28, 29, 31, 33, and 47, and that the limitations imposed are not reasonable or justifiable under Article 24.
40. The 2 nd Interested Party (Jinsiangu Kenya) filed written submissions focusing on the medical and scientific understanding of gender identity, relying on the Expert Report of Dr. PickstoneTaylor and the affidavits of Kristen Kiza, Tanaka Muren, and Frankie Robert Kibagendi. The 2 nd Interested Party urges the Court to recognize that transgender persons do not choose their gender identity and cannot change it through therapy, and that legal recognition is essential for their mental health and dignity.
41. The 3 rd Interested Party (Kenya Human Rights Commission) filed written submissions that canvassed the affidavits of Arya Jeipea Karijo and Adrian King Kibe, highlighting the practical consequences of the refusal to change gender markers, including loss of employment and inability to access insurance.
THE RESPONDENTS’ CASE
42. The 2 nd Respondent filed a Replying Affidavit sworn by Shumary Malleon on 21 st February 2022. At Paragraph 9, the Deponent states that:
“The issue of intersex and transgender persons is an emerging area that is not provided for in the Births and Deaths Registration Act that the 2nd Respondent is currently grappling with.”
43. At Paragraphs 11 and 12, the Deponent states that the Births and Deaths Registration Act only recognizes the biological aspect of sex, and that in practice the identification of sex during registration is based on physiological features seen by the person attending the birth.
44. At Paragraph 14, the Deponent avers that “the names given to an individual for purposes of registration, at all times automatically match the respective sex of the registered person so much so that any deviation is procedurally flagged out as an error.”
45. At Paragraph 19, the Shumary Malleon states that the Act does not envisage a situation where the biological facts of sex recorded can be altered on demand other than on fact. The 2 nd Respondent therefore does not deny that a change may be possible if a factual basis is shown, such as for intersex persons, but argues that gender reassignment on demand is not provided for.
46. The other Respondents, through the Attorney General, filed Grounds of Opposition dated 18 th February 2022 but no affidavits. The grounds can be summarized as follows:
a. that the Petitioners have not demonstrated how the Respondents have violated their constitutional rights, that the Petition lacks the specificity required by the principle in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272 ;
b. that the 2 nd Respondent’s operational statute does not provide for change of sex particulars after registration;
c. that the Petition raises a technical matter that may only be dispensed with on medical grounds;
d. that if the Court grants the orders sought, it will be compelling the government to “legalize the LGBTQ community ”;
e. that the Petition is mischievous as it does not clearly spell out to what gender the Petitioners want to change their identity;
f. that the Petitioners were clearly assigned a gender mark at birth;
g. that the Respondents’ actions are within their statutory mandate;
h. that the Petition seeks an order against a “4 th Respondent” who is not sued as a party; AND
i. that the Court would be overstretching its mandate if the orders are granted and that the Petition is incompetent, misconceived, and an abuse of process.
47. The 2 nd Respondent does not deny that a change of particulars may be possible if a factual error is shown. However, the 2 nd Respondent argues that the Act does not provide for change of sex on account of gender reassignment, and that sex is a biological fact based on physiological features observed at birth.
48. The 2 nd Respondent distinguishes between sex (a prescribed particular) and gender (which the deponent describes as a societal or selfdriven construction that is not physiologically evident and therefore not a prescribed particular). The 2 nd Respondent admits that it is “grappling with” the issue of transgender persons and is awaiting guidance from the Kenya Medical Practitioners and Dentists Board, even though the Petitioners have pointed out that the Board has disclaimed any statutory mandate to provide such guidance.
49. Through the Respondents’ collective written submissions filed on 22 nd October 2024, the 1 st Respondent expands on these grounds. The written submissions argue that Section 10 of Cap 149 requires the person notifying a birth to give the prescribed particulars, including sex, to the best of their knowledge and ability, and that this is based on physiological features. The written submissions rely on the dissenting opinion in NGOs Coordination Board v EG & 4 others, Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR), where it was stated that the word “sex” in the Constitution is used in reference to a person’s sexual anatomy based on sex chromosomes.
50. The Respondents’ written submissions also argue that the law does not contemplate a change of gender marks on account of being transgender, and that what the Petitioners seek is a change based on “feelings,” which is not recognized in law. The submissions also argue that the Petition lacks specificity and that the 3 rd Petitioner has not demonstrated that he was denied an ID card. The Respondents urge the Court to dismiss the Petition with costs.
ANALYSIS AND DETERMINATION
51. Having carefully examined the Petition, the affidavits and annexures placed before the Court, the Expert Report, the Grounds of Opposition, the respective written and oral submissions of the parties and Interested Parties, together with the applicable constitutional, statutory, and comparative legal authorities, this Court is satisfied that the following issues arise for determination :
i. Whether the Petitioners, as transgender persons, are entitled to the protection of the rights and fundamental freedoms enshrined in the Bill of Rights, particularly under Articles 27, 28, 29, 31, 33, and 47 of the Constitution;
ii. Whether the Respondents’ refusal to change the sex or gender markers on the Petitioners’ birth certificates, national identity cards, and passports to align with their gender identity constitutes a violation of those constitutional rights;
iii. Whether the Respondents’ actions, including the failure of the 3 rd and 4 th Respondents to file any replying affidavit or provide any justification, are reasonable and justifiable limitations of the Petitioners’ rights under Article 24 of the Constitution; AND
iv. What is the proper interpretation of the Constitution and the relevant statutes (Cap 149 and Cap 107) in light of the emerging understanding of gender identity; and what relief, if any, should this Court grant to the Petitioners.
Whether the Petitioners, as transgender persons, are entitled to the protection of the rights and fundamental freedoms enshrined in the Bill of Rights, particularly under Articles 27, 28, 29, 31, 33, and 47 of the Constitution
52. This Court is called upon, at the threshold, to determine a foundational question which, though seemingly elementary, is determinative of the entire architecture of this judgment: whether the Petitioners, by virtue of being transgender persons, fall within the protective scope of the Bill of Rights in respect of their gender identity.
53. While the Respondents do not expressly contend that transgender persons are excluded from constitutional protection, the tenor and implication of their arguments that the law does not recognize a change of sex marker based on chosen gender identity necessarily raises the question whether the Petitioners’ asserted identity has any legal relevance within the constitutional order.
54. The starting point is Article 19(3)(a) of the Constitution, which provides that:
“the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.”
55. The phrase “each individual” is deliberately unqualified. It admits of no textual limitation based on sex assigned at birth, biological characteristics, or conformity with socially assigned gender categories.
56. Throughout the length and breadth of the Bill of Rights, the Constitution employs deliberately expansive language to ensure the universality of rights protection. This universality is not incidental but foundational to the transformative character of the 2010 Constitution. Pursuant to Article 20(1), the Bill of Rights binds all State organs and all persons. Read together with Article 19(3), it is evident that rights attach to the individual as such, and not to any preconditioned classification of personhood. There is therefore no constitutional basis upon which this Court can carve out an excluded category of persons from the protection of the Bill of Rights, or whom are inherently excluded ab initio from putative coverage under the Bill of Rights.
57. This is not to say that as a individuals or group within the ambit of the Bill of Rights, transgender persons enjoy unlimited rights. With the exception of the rights under Article 25, all other rights in the Bill
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