The High Court has issued a landmark constitutional ruling affirming that transgender and intersex Kenyans may seek changes to sex and gender markers on official documents, holding that such applications must be considered on a case-by-case basis in line with constitutional protections.
In a judgment delivered virtually on Wednesday, Justice Bahati Mwamuye ruled that state agencies cannot reject requests to alter gender markers in a manner that infringes on the rights to dignity, equality and fair administrative action.
The court found that neither the Births and Deaths Registration Act nor the Registration of Persons Act expressly prohibits the amendment of gender or sex markers on key identification documents, including birth certificates, national identity cards and passports.
Consequently, Justice Mwamuye directed relevant government agencies to receive and determine such applications within 60 days. The process, the court held, must be guided by constitutional principles, including fairness, human dignity and equality before the law.
In a strongly worded passage, Justice Mwamuye underscored the role of the court in enforcing fundamental rights.
“This court reiterates that constitutional adjudication is not an abstract exercise in legal reasoning, but a mechanism for vindicating rights where infringement has been demonstrated and no lawful justification has been established,” he stated.
The decision marks a significant development in Kenya’s evolving jurisprudence on gender identity and administrative justice, placing a clear obligation on public bodies to act within the bounds of the Constitution when handling such sensitive applications.
High Court Opens Door for Gender Marker Changes on Official Documents
