The High Court has paved the way for individuals seeking to change their gender markers to do so without being constrained by classifications of male, female or intersex.
Justice Bahati Mwamuye, in his judgment in a case filed by transgender activist Audrey Mbugua alongside Maureen Muiya and Arnest Thaiya, said that delays and silence cannot be used to defeat constitutional requirements.
He noted that despite several orders directing the government to amend Mbugua’s birth and identification documents, the births and deaths registry failed to comply, citing a gap in the law.
However, Justice Mwamuye held that the existing law does not prevent anyone from changing their gender markers when they choose to do so.
“Constitutional processes cannot be limited by administrative convenience, nor can they be postponed pending legislative intervention. A declaration is hereby issued that the Births and Deaths Registration Act, Chapter 149, and the Registration of Persons, Chapter 157, interpreted in a manner consistent with the Constitution, do not prohibit the consideration of alteration of gender markers in registration documents in a manner that is consistent with the Bill of Rights,” he said.
He ordered that the registrar must receive and process applications within 60 days.
In the meantime, he directed that, in the absence of a specific law, gender marker changes be determined on a case-by-case basis, depending on the medical and legal evidence presented by applicants.
In their joint petition before the High Court, Mbugua, Muiya and Thaiya said they had been subjected to abuse and discrimination because their names did not reflect their gender identity.
They told the court of the pain of living with names that did not align with their gender, including experiences of humiliation such as being forced to strip naked and facing physical assault.
The court heard that the three had written to the Registrar of Births seeking to change the names and gender markers on their national identity cards and passports. However, they were informed that the Births and Deaths Registration Act did not provide for a change of gender from male to female, or vice versa, nor for altering names from male to female designations, or vice versa.
Court records further show that the trio was told that only a medical doctor could certify a change of sex.
Reassignment surgery
Audrey, in her affidavit, said that her name in government records appears as Andrew Mbugua Ithibu. She stated that she had sought gender reassignment surgery at Kenyatta National Hospital, but the public facility declined to perform the procedure.
She further said she lodged a complaint with the Kenya Medical Practitioners and Dentists Council, but received no response.
“The petitioners are required to explain their gender identities and the gender affixed in their records at every juncture of their lives. It brings them ridicule, suspicion, unwarranted arrests, assaults, discrimination, denial of services and untold suffering and mental anguish,” the petition before the High Court, seen by The Nairobian, reads in part.
Audrey said she had experienced repeated encounters with police officers who assumed she was homosexual, leading to humiliation in public spaces.
“Having suffered a lot of discrimination, violence and suspicion, I was bereft of human dignity and peace. Identification documents for people who are cisgender are taken for granted, but for a transgender person they are a matter of life and death,” she said.
She had earlier filed a case against the Kenya National Examinations Council (KNEC), seeking to compel it to amend her name on her academic certificates, a case she won.
Meanwhile, Maureen, who was born in Machakos County as Maurice Munyaka Muia, said she had never identified as a boy. Her formal education ended at primary level, after which she enrolled for a hairdressing course at a local college and socially transitioned to living as a woman.
She recounted that while applying for her national identity card, a registration officer asked her gender, and she stated that she was a woman. The officer then asked whether she had male or female genitalia.
Court records show that she replied that she had male genitalia. Her identity card, however, reflects a female gender marker but carries a male name.
Assaulted by police
“People would treat me suspiciously, saying my identity card was fake,” Maureen said in her petition.
She added that she had been assaulted by police officers in Mombasa after being mistaken for a homosexual. She further stated that several people had at times sought refunds after sending money via her mobile phone, as her registered details still bore the name Maurice.
“My clients and bank agents look at me as a female, but my identity card is that of a male. I am then suspected to be a criminal using fake documents,” she said. She said she had formally changed her name after renouncing her former male name, but her efforts to have the details updated on her ID and passport hit a dead end.
Arnest, the second-born in a family of five, was born Annet Jennifer Muthoni. He said his first encounter with the police came in 2004 after a landlord accused him of holding fake identification documents.
Upon arrest, he said he was forced to strip naked to prove his gender, but he refused to comply with the officers’ demands and was held in custody for seven days.
He added that he has repeatedly been accused of fraud when presenting himself as a man, despite his identity card bearing a female name.