Procedural Posture
The petitioner, an intersex individual, brought suit alleging violations of constitutional rights.
Facts
The petitioner was born with both female and male genitalia. The petitioner’s parents gave him a male name but, as a result of his ambiguous gender, he did not obtain a birth certificate and thus could not acquire an identity card or passport. The petitioner’s parents did not pursue the option of “corrective” surgery because it was too expensive. The Petitioner did not complete his schooling and an attempt at marriage did not succeed.
Eventually the petitioner was charged with the capital offence of robbery with violence, arrested, and held in prison. During a routine physical search the prison officers discovered his ambiguous genitalia and consequently could not decide whether to house him in a male or female cell. The Kiuti Magistrates Court ordered that the petitioner be medically examined and the medical report confirmed that he was intersexual. The Magistrates Court then ordered that the petitioner was to be remanded in isolation in the Kiuti Police Station pending trial.
The petitioner was convicted, sentenced to death and sent to a male-only prison for convicts on death row. There the petitioner was made to share cells and facilities with male inmates but was later placed in isolation. It was alleged that while he was in the prison he was subjected to invasive body searches, mockery and abuse because of his condition.
Issue
Whether, as a result of being intersex, the petitioner had suffered from lack of legal recognition and from discrimination; had his fundamental rights violated during the hearing of his case; or had been subjected to inhuman or degrading treatment.
Domestic Law
Births and Deaths Registration Act Cap 149.
Constitution of Kenya.
Prisons Act Cap 90.
Prison Rules.
Comparative Law
Corbett v. Corbett (Otherwise Ashley), Probate, Divorce and Admiralty Division, United Kingdom, 1970 (holding that sex was biologically fixed at birth and could not be changed by medical or surgical means)
International Law
International Covenant on Civil and Political Rights, Article 26 (equal protection and non-discrimination).
Universal Declaration of Human Rights, Article 2 (non-discrimination) and Article 5 (torture or cruel, inhuman or degrading treatment or punishment).
Reasoning of the Court
The Court found that the petitioner’s condition fitted its definition of intersex as “an abnormal condition of varying degrees with regard to the sex constitution of a person”. In response to the petitioner’s attempt to bring a representative suit, the Court held that, since there was no empirical data about intersex as a group or class within Kenyan society, the issue of the treatment of intersexuals generally was not a public interest matter. Furthermore, the “magnitude” of the issue was not such that it called for government intervention or regulation.
Lack of legal recognition and discrimination
The Court found that under the Births and Deaths Registration Act, sex meant either male or female. The term sex was not defined in the Constitution but the Court was persuaded by the English case of Corbett v. Corbett to assert that “biological sexual constitution” was determined, at birth at the latest, as either male or female. In the case of intersexuals, the Court held that they could be categorised within the broad categories of male and female based on their dominant physiological characteristics at birth. The Court found that at birth the petitioner’s external genitalia and dominant physiological characteristics fit more with the male sex and that he therefore could have been registered as male under the Births and Deaths Registration Act. Consequently, the Court rejected the Petitioner’s contention that he suffered from a lack of legal recognition based on an inability to have his birth registered.
The Court did not agree with the petitioner’s assertion that, in order to provide intersexuals with equal protection of the law, the term “sex” in the Constitution should be interpreted widely to include a third category of gender. The Court held that it would be a “fallacy” to act as requested because the term “sex” under the Constitution included intersex within the categories of “male” and “female”. Intersex individuals would fall into one category or another based on the dominant gender characteristics they exhibited at birth, and it was not within the mandate of the Court to expand the meaning of the term “sex” when the legislature had not done so. The Court reasoned that this interpretation was compatible with the meaning of the term “sex”, in the context of recognition of equality, in the UDHR.
The Court also held that it was unnecessary to invoke the category of “other status” under Article 2 of the UDHR or Article 26 of the ICCPR, in order to accord intersexuals specific protection against discrimination. The Court stated that the Constitution of Kenya already adequately provided for intersexual status within the meaning of “sex”, and considered that any other conclusion would be contrary to the intent of the legislature and to the position of Kenyan society on the issue.
Discrimination and disadvantage in education, employment and housing
The Court held that the petitioner had not been discriminated against or disadvantaged in education, employment and housing. When the petitioner commenced schooling there was no requirement that a birth certificate be presented as a prerequisite to enrolment. The petitioner was found to have left school of his own volition and his problems with employment and housing resulted from this decision. The Court held that it was the petitioner’s failure to attend school, rather than his intersexual status, that had disadvantaged him.
In addition, the Court rejected the petitioner’s argument that he had been denied the right to vote through lack of recognition, holding that the petitioner was responsible for his failure to obtain the necessary identity documents. The petitioner was found to have made no effort to obtain a voter card and to have “disenfranchised himself by deliberately failing” to meet the conditions for voting.
Social Stigma
The Court held that the social stigma that the petitioner suffered was not a legal issue. Rather, it was a social problem highlighting the need to educate society to respect the dignity of human beings. The condition of intersexuality needed to be understood better and addressed in the community. The Court noted that Kenyan society was a “predominantly traditional African society in terms of its social, moral and religious values”. As a result, the legislature rather than the courts was required to gauge whether the circumstances required that legislative action be taken to alleviate the situation for intersexuals.
Violation of fundamental rights during the hearing of the criminal case
The Court dismissed the petitioner’s contention that he was unconstitutionally detained in the police station while his trial was pending. The detention was pursuant to a valid court order and the order was made because no other appropriate place of detention was available. The nature of the petitioner’s crime meant that he did not qualify for bail and his fundamental right to liberty was constitutionally limited because he faced a capital charge. On these grounds, the Court considered the detention to have been legal and justified.
The Prisons Act and Prisons Rules
The Court held that the neither the Prisons Act nor the Prisons Rules contained provisions that discriminated against intersexuals. The petitioner argued that he should have been detained in a separate location where specially trained staff could have cared for him, rather than placed in a male prison. The Court acknowledged that the petitioner’s situation was unique and had not been anticipated by the legislature but found that it would be impracticable to create a prison solely for him. The Court held that the petitioner’s need for special treatment has already been recognised by the court order that he be separately confined. This order was made lawfully and for the petitioner’s own good and was not a violation of his fundamental rights.
Freedom of movement and association and right to privacy
The Court held that the petitioner’s rights to freedom of movement and association, and to privacy, had not been violated. Following his arrest, the petitioner’s freedom of movement was lawfully restricted. Nor could the petitioner complain that his freedom of movement had been unconstitutionally limited prior to his arrest, because he had taken no steps to have his birth registered. The Court held that the petitioner’s inability to obtain identity documents, including a passport, was caused by his own failure to register his birth.
The Court held that the evidence of interference in the petitioner’s right to privacy was insufficient, because, as a convict, elements of his privacy had been legally removed.
Protection against inhuman and degrading treatment
The Court held that the petitioner had been subjected to inhuman and degrading treatment under the Constitution and Article 5 of the UDHR. The Petitioner had reported being exposed to other prisoners and having blood drawn without consent or explanation, in violation of his rights. Although all prisoners were searched as a matter of course, the exposure of the petitioner to other prisoners and the derision he subsequently endured constituted a violation of his rights. The petitioner had been subjected to humiliating and invasive body searches that were “motivated by an element of sadism and mischievous curiosity, to expose the petitioner’s unusual condition”. The exposure of the petitioner’s ambiguous genitalia in the presence of others was found to have been “cruel and brought ridicule and contempt”. This treatment revealed a lack of respect for the petitioner’s human dignity and constituted a violation of his constitutional rights.
The Court awarded the petitioner damages of 500,000 Kenyan Shillings for the inhuman and degrading treatment he endured.
Richard Muasya v. the Hon. Attorney General, High Court of Kenya (full text of judgment, PDF)
