Kenyan Court: duty to protect rights of intersex persons

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), Executive Director of the Malawi Law Society and Co-Director of Nyale Institute for Sexual and Reproductive Health Governance, for writing a new African case summary for the forthcoming publication, Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts:

Baby “A” (suing through her mother, E.A.) and The Cradle the Children Foundation v Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths [2014] eKLR, Petition No. 266 of 2013 (High Court of Kenya at Nairobi, (Constitutional and Human Rights Division)). Decision onlineFull Case Summary.

COURT HOLDING

  • Baby A is intersexual based on the fact that a laboratory report/form indicated a question mark on the sex of the child, showing that there is ambiguity about the sex of the child. Though the Acknowledgment of Birth Document indicated the child as “male”, it is usually the case that society would categorise an intersex child as male or female.
  • There is no evidence that the rights of Baby A or other intersex persons were violated in any way because of Sections 2(a) and 7 of the Registration of Births and Deaths Act (RBDA).
  • It is an anomaly that the current legal framework does not recognise intersex persons. It is the duty of the government to protect the rights of intersex babies and persons by providing a legal framework to address issues relating to them, including registration under the RBDA, medical examination and tests, and corrective surgeries.
  • There is need to collect data on the intersex population to enable proper design of public policy. There is however, no agreement on whose duty it is to collect this data, and the Court would not make a determination on this issue.

The full case summary of the Baby A case  by Godfrey Kangaude, online here, contrasts this decision with Kenya’s first intersex case,  RM v The Hon. Attorney General & 4 Others, eKLR Petition no 705 of 2007 (High Court of Kenya at Nairobi, Nairobi Law Courts). R.M. Decision online.   Case summary of R.M

Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts   (2000 to 2008) Volumes I and II can be downloaded here.  Our update will be published early in 2017.  Decisions already identified for inclusion  are online here.  New case summaries are added every month.   If you can suggest other cases, please do!   How You Can Help.

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