Court gives state seven days to respond in intersex rights case

The case seeks to address ongoing violations of the rights of intersex children and adults across the country.

“We are advancing issues of access to emergency healthcare, the right to education, recognition of identity, and protection from harassment, all of which intersex persons are being denied in Kenya,” submitted lawyer Matiko Mang'era and Eric Keli.

On healthcare, the petitioners argue that amendments to the Children Act have worsened the situation. The law prohibits surgeries on intersex children, but Mang'era said this has been interpreted by hospitals both public and private as a blanket bar, even in life-threatening circumstances.

 “One of the petitioners is in urgent need of medical intervention but has been denied access in several hospitals. This is a matter of life and death,” the lawyer argues.

The petition further paints a grim picture of intersex teenagers being pushed out of school due to contradictions between their physical appearance and the gender indicated in their birth certificates.

 Mang'era recounted the ordeal of one child who was registered as male at birth, but whose body developed female characteristics in adolescence.

 “This child has been transferred between four and five schools within just two years because institutions are unwilling to accommodate them. At the moment, they are forced to wear chest binders just to stay in a boys’ school,” the lawyer told the court.

On access to justice, the petitioners say intersex persons are often criminalized instead of protected. Adults are harassed, arrested, or even charged with impersonation when their appearance does not match the details in their IDs or passports.

“When they go to report a crime, instead of being heard, they are victimized,” Mangera said.

The petition also raises barriers in changing identity documents, which directly affect access to jobs, healthcare, and other services. 

The current system requires a certificate from a medical officer acknowledging an error at birth, supported by genotype test results. 

However, Kenya lacks facilities for such tests, forcing applicants to seek services abroad, particularly in South Africa, at a cost of up to Ksh.75,000—an expense far beyond the reach of most.

Beyond identity and healthcare, the petition accuses the government of systemic discrimination. 

Mangera said the State has been using intersex persons as “props for publicity” to gain validation for inclusion without implementing actual financial empowerment programs. 

“What they need is not token appearances in campaigns but tangible measures to uplift them socially and economically,” she told the court.

The petition cites violations of fundamental rights under the Constitution, including the right to life, dignity, equality, freedom from discrimination, and the rights of children.

 The petitioners are seeking a raft of interim orders, among them: directing issuance of proper birth certificates, restraining police from harassing intersex persons, compelling schools to admit them, and requiring the government to facilitate emergency surgeries where necessary.

The matter will now proceed next week in open court.