Kenya has taken remarkable strides in championing gender equality and eradicating discrimination, with the Constitution in Article 27 explicitly prohibiting bias on the grounds of sex. However, the absence of a precise constitutional definition of gender has ignited legal and societal discourse, stirring debates on whether to embrace a more inclusive interpretation, one that acknowledges and affirms the existence of intersex persons. The lack of clear gender designation highlights the systemic challenges intersex individuals face, including difficulties in obtaining essential documents.[2] Over the years, Kenyan courts have delivered progressive judgments, such as the Baby A,[3] and the RM case which have pushed for the recognition and protection of intersex individuals.[4]
Consequently, the government instituted a task force on the Policy, Legal, Institutional, and Administrative Reforms to address the rights and recognition of intersex persons. This led to the introduction of policies such as recognising intersex persons in birth certificates[5] and proposing the Intersex Bill to grant them legal protection.[6] Despite these strides, intersex persons remain largely absent from political spaces, depriving them of a crucial voice in shaping the laws and policies that directly impact their lives.
This article delves into the historical treatment of intersex persons in Kenya, tracing their journey from marginalization to the strides made in legal and administrative frameworks aimed at safeguarding their rights. It explores the promise of future legal reforms, particularly in the realm of political representation, where their voices remain largely unheard. At its heart, this piece champions the inclusion of intersex persons in governance, not as a token gesture, but as an essential step towards true equality and full recognition under the law.
Historical context of recognition of intersex persons in Kenya
In the 18th and 19th centuries, intersex persons were referred to as ‘hermaphrodites’ which meant a person with both male and female reproductive organs.[7] In Kenya, the existence of intersex persons has been recognised for a long time.[8] However, talking about sex was taboo and even the mention of the more uncommon sex statuses as the intersex was unthinkable.[9] In 1964, Robert B Edgertonn’s research focused on the cultural beliefs and perspectives on intersex persons among the Pokot.[10] According to the research, an intersex child was perceived as an unfortunate occurrence and a freak, with some people in the community indicating that if they had such a baby, they would kill it[11] Others saw the killing of such intersex children as a cultural and religious duty.[12]
This reality mirrors the perspective of many other Kenyan communities, where an intersex person was often seen as an anomaly.[13] Across numerous African cultures, the birth of a child is a moment of great celebration, marked by a sacred naming ceremony. A child’s name is more than just an identity, it is a cherished symbol, carefully chosen to uphold the family’s honour and lineage. Traditionally, names are deeply rooted in gender, reinforcing societal roles and expectations.[14] For intersex children, this deeply ingrained practice becomes a source of exclusion, as their existence defies rigid gender norms. Many indigenous names have two versions: a masculine and a feminine one.[15]
However, the situation was a bit different when the child was intersex. Most communities either did not have proper names to describe the intersex or else used some descriptive words to refer to them.[16] Still, even such euphemisms were hardly ever used in public discourse since the entire subject of sex was taboo. Some of these related names and descriptions among the indigenous communities across the country include: Huntha/jinsia mbili (Kiswahili, literally ‘intersex or two-sexed’); Mali-nda (Akamba, ‘something inside the body’); nyot gath (Luo, ‘deformed progeny or unnatural baby/ child’); Kiugu/Ciugu (Kikuyu, ‘someone not perfect, or of no value’), chelososiot (Kipsigis)[17] and serrer (Pokot; ‘male and female yet neither male or female’).[18] Additionally, intersex children who are lucky enough to be given actual names are given names that are reproached in society and are inclined to the intersex trait. Such was the case for Lazaro, a Pokot intersex adult.[19] According to his parents, he was named Lazaro because that is the name for a poor man who has nothing.[20] These descriptive names which identified and categorised individuals as intersex subjected them to discrimination, ridicule and public condemnation in society.
Similarly, the fate of intersex persons in other indigenous communities in Kenya remains dire. Their plight, both historically and presently, is marked by relentless struggles from birth, including challenges in naming, identity, and cultural practices. They face the same dilemmas due to prejudicial cultural beliefs throughout their lives, if they are lucky to survive.[21] This greatly contrasts with the care and nurture accorded to other persons falling within the binary categorisation of male and female.
Legal milestones in intersex recognition
For long, the plight of intersex persons has been ignored, exposing this group of vulnerable persons to numerous human rights violations.[22] To address the historical and ongoing challenges faced by intersex persons, the government has taken significant steps to promote inclusivity and safeguard their rights in Kenya.[23] Most of these developments have been spearheaded by the Judiciary, with progressive decisions such as the Baby A,[24] and RM v AG cases setting important legal precedents.[25]
These cases were instrumental in the promotion and protection of intersex persons.[26] They also served as a wake-up call, emphasizing the urgent need for laws that specifically address the rights and needs of intersex individuals in our society;[27]
Baby A Case
The case was about a baby, Baby A, who was born with both male and female genitalia in Kenyatta National Hospital.[28] The hospital conducted medical tests and recorded the child's sex as a question mark.[29] Due to this, Baby A was not issued with a birth certificate.[30] The Petitioners argued that the question mark violates Baby A’s rights to legal recognition, dignity, and protection from inhuman and degrading treatment.[31] The Court reasoned that sex should be interpreted widely to include intersex as a third category of sex.[32] Additionally, it recognised Baby A as an intersex person entitled to full constitutional rights and protection from discrimination.[33] It directed the Registrar of Births and Deaths to process Baby A’s birth registration, affirming that all children, including intersex individuals, have the right to legal recognition.[34] It urged Parliament to enact laws addressing intersex rights, including birth registration and corrective surgery guidelines.[35] It also ordered the Attorney General to identify the agency responsible for collecting intersex data and report on legislative progress within 90 days.[36]
RM v AG
Another pivotal case in this discourse is RM v AG,[37] which examined the legal recognition and rights of intersex persons in Kenya. The case was crucial in advocating for the rights of intersex prisoners, as it highlighted the legal invisibility of intersex persons in Kenya's prison system, exposing them to discrimination and inhumane treatment due to the absence of appropriate detention facilities.[38]
The petitioner, an intersex individual, argued that existing laws failed to recognise their identity, leading to discrimination, lack of access to identification documents, and economic exclusion.[39] The Court acknowledged that the Kenyan legal framework did not define sex in a way that included intersex persons and that it needs no interpretation beyond its ordinary and natural meaning which is inclusive of all persons including intersex persons.[40] It stated that intersex persons fall within one of the two categories of male and female gender included in the term sex.[41]
Ultimately, the court highlighted the need for legislative reforms to ensure that intersex persons are afforded equal rights, including recognition under the Births and Deaths Registration Act and protection from discrimination under constitutional provisions.[42]
Present milestones in intersex recognition
In 2017, a Taskforce on the Policy, Legal, Institutional and Administrative Reforms regarding intersex persons was established, partly informed by the outcome of RM vs AG and Baby A’s case.[43] Among the many recommendations proposed by the Taskforce was the legal recognition of intersex persons, through the introduction of an Intersex (I) marker in all official documents that require identification of sex and the amendment and introduction of a comprehensive definition of who an intersex person is in the relevant laws such as Interpretation and General Provisions Act, Persons Deprived of Liberty Act and the Children Act.[44] Furthermore, the Taskforce proposed the expeditious provision of birth certificates, identification documents, passports and other official personal documentation by including provisions for the intersex (I) marker, the subsequent amendment of sexual markers in official documents and the eventual amendment of the Births and Deaths Registration Act, Registration of Persons Act, Interpretation of General Provisions Act, Kenya Citizenship and Immigration Act and Children Act.[45] It also proposed recommendations to the criminal justice system and called upon the Legislature to amend laws to ensure equal treatment, respect and protection of the dignity of intersex persons within the criminal justice sector.[46]
Following these recommendations, the government has since made several steps to promote and realise the rights of intersex persons. The government has since ushered in a new format of birth certificates, one that includes a third gender designation, (I), representing intersex children.[47] The parliament has also proposed and is considering a law, the Intersex Persons Bill of 2023, which caters for the protection and promotion of the rights of intersex persons in Kenya, on top of the various amendments it has done to several laws in line with the recommendations.[48]
For instance, section 21 of the Children Act 2022 makes particular reference to intersex children and their right to be treated with dignity. Further, section 144 (z) of the same act now provides that intersex children who may be at risk of their rights being violated be categorised as children in need of care and protection. Additionally, the National Police Service Standing Orders Chapter 5 Rule 15 (4), makes provision for detention of intersex persons in police custody. The Persons Deprived of Liberty Act 2014 contains specific provisions on the protection of the human rights of intersex offenders and the need to ensure separate confinement. In addition, intersex persons are officially recognised as a third gender in Kenya, as evidenced in the Census of 2019 in which Kenya became the first country in Africa to recognise and collect data on intersex persons.[49]
Recommendation; Possibility for political representation of intersex persons
Despite the welcoming nature of the recommendations and the strides made by the government, one grave omission was made. One that speaks to the very soul of inclusivity. That of political representation. The recommendations did not address the challenge of political representation of intersex people, effectively exiling intersex persons from the corridors of representation. This exclusion is not merely an oversight, it is a systemic erasure that denies intersex persons their right to political participation, equal treatment, and the protections that shield others from marginalisation. It deprives them of a crucial voice in shaping the laws and policies that directly impact their lives.
The depth of this invisibility is evident in official data. While the 2019 census recorded only 1,524 individuals as intersex, the Kenya National Commission on Human Rights estimates the actual population could be as high as 1.4 million.[50] Therefore, they are a part of our society, and just like other people, have a right to political representation, and to participate in the making of laws that affect them.
The Constitution, in promoting gender equality, representation and inclusivity in governance structures introduced provisions such as Article 27(8) which advocates for two-thirds gender rule in elective and appointive bodies. Article 81 highlights gender representation as one of the electoral principles. Article 91 mandates political parties to ascribe to gender equality and equity and, Article 197 advocates for gender representation in the county assemblies, just to mention but a few.[51] However, despite these provisions, the Constitution lacks specific provisions for intersex persons’ inclusion in governance. This legal gap leads to political exclusion due to the absence of recognition and affirmative action for intersex persons. Therefore, legislative reforms are necessary to acknowledge gender diversity beyond the male-female binary and promote intersex participation in leadership.
Furthermore, the Constitution mandates the state to fully realise the rights guaranteed in Article 27. This includes ensuring the full and equal enjoyment of all rights and fundamental freedoms.[52]Additionally,it requires the state to take legislative and other measures, such as affirmative action programs and policies, to redress disadvantages suffered by individuals or groups due to past discrimination.[53] All these provisions were meant to enhance inclusivity and gender representation in governance structures. Therefore, with the realisation and acceptance of a third type of gender, Kenya should thus reaffirm its commitments to inclusiveness and gender equality.
Conclusion
With inclusivity anchored as a national value and principle of good governance, coupled with gender equality as a constitutional tenet that lives with us, Kenya should rise beyond its historical and cultural roots and honor the spirit, not just the letter, of the law. Achieving this entails the inclusion of all individuals, including intersex persons, in all spheres of our lives, including governance.
While Kenya has made notable efforts in recognizing intersex rights, political representation remains a fallacy to them. The same olive branch that has been extended to other minority groups[54] and gender(s)[55] by offering them adequate political representation platforms and seats should also be accorded to intersex persons, as they are no different from other persons and have equal benefit of the law.[56]
[1] Michelle Ivy Maena is a finalist student at Kabarak University, School of Law.
[2] Peter Ongera, ‘Kenya has officially recognised intersex as third gender’, Kajiado news update, 11 February 2025, -<https://www.kajiado.co.ke/kenya-has-officially-recognised-intersex-as-third-gender/> on 14 March 2025.
[3] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), Petition 266 of 2013, Judgment of the High Court at Nairobi, 16 March 2015, eKLR.
[4] RM v AG and 4 Others, Petition 705 of 2007, Judgment of the High Court at Nairobi, 2 December 2010, eKLR.
[5] Births and Deaths Registration (Amendment) Rules, (Legal Notice No. 153 of 2024).
[6] Intersex Persons Bill, 2023.
[7]Merriam-Webster dictionary, ‘Hermaphrodite’, -<https://www.merriam-webster.com/dictionary/hermaphrodite> on 12 March 2025.
[8]Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 10 December 2018, 41.
[9] Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 10 December 2018, 40.
[10]Robert B. Edgerton, ‘Pokot intersexuality: An East African example of the resolution of sexual incongruity’, 6(66) Wiley (1964) 1288-1299.
[11]Robert B. Edgerton, ‘Pokot intersexuality: An East African example of the resolution of sexual incongruity’ 1291.
[12]Robert B. Edgerton, ‘Pokot intersexuality: An East African example of the resolution of sexual incongruity’ 1291.
[13]Esther-Blessing Nasimiyu, ‘The opposite sex for the intersex person; assumption of binary in Kenya’s Constitution’ Africlaw, 13 October 2023 <https://africlaw.com/2023/10/13/the-opposite-sex-for-the-intersex-person-assumption-of-binary-in-kenyas-constitution/.> on 18 March 2025.
[14]Ali A Mazrui, ‘The Black Woman and the Problem of Gender: An African Perspective’, 1(24) Indiana University Press (1993), 90.
[15]Ali A Mazrui, ‘The Black Woman and the Problem of Gender: An African Perspective’, 1(24) Indiana University Press (1993), 90.
[16]Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 42.
[17]Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 42.
[18]Robert B. Edgerton, ‘Pokot intersexuality: An East African example of the resolution of sexual incongruity’ 1292.
[19]Robert B. Edgerton, ‘Pokot intersexuality: An East African example of the resolution of sexual incongruity’ 1293.
[20]Robert B. Edgerton, ‘Pokot intersexuality: An East African example of the resolution of sexual incongruity’ 1293.
[21] Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 42.
[22] Kenya Gazette, CXXV (125), 1st September 2023, 195.
[23] Constitution of Kenya (2010), Article 10 (2b).
[24] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae).
[25] RM v AG and 4 Others, Petition 705 of 2007, Judgment of the High Court at Nairobi, 2 December 2010, eKLR.
[26] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 64.
[27] RM v AG and 4 Others, para 148.
[28] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 1.
[29] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 1.
[30] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 1.
[31] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 1 (b).
[32] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 59.
[33] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 64.
[34] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 58, 59 and 74 (iv).
[35] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 68.
[36] Baby ‘A’ (Suing through her mother, EA) and another v Attorney General and 2 Others; Kenya National Commission on Human Rights and 2 Others (Interested Parties); Kenya Human Rights Commission (Amicus Curiae), para 74 (ii andiii).
[37] RM v AG and 4 Others, Petition 705 of 2007, Judgment of the High Court at Nairobi, 2 December 2010, eKLR.
[38] RM v AG and 4 Others, 156.
[39] RM v AG and 4 Others, para 32.
[40] RM v AG and 4 Others, para 132.
[41] RM v AG and 4 Others, para 130.
[42] RM v AG and 4 Others, para 148.
[43] Kenya Gazette, CXXV (), 1st September 2023, 195.
[44] Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 191.
[45] Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 191.
[46] Report Taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 194.
[47] Births and Deaths Registration (Amendment) Rules, (Legal Notice No. 153 of 2024).
[48] Intersex Persons Bill, 2023.
[49] Kenya Gazette, CXXV (125), 1st September 2023, 195.
[50] Marhmoud Garga, ‘IPPF Africa Region welcomes Kenya’s landmark recognition of intersex persons’, 13 February 2025, -<https://africa.ippf.org/media-center/ippf-africa-region-welcomes-kenyas-landmark-recognition-intersex-persons On 31,in the Kenya Legal Notice 153 of 2025.> on 14 March 2025.
[51] Constitution of Kenya (2010), Articles; 27(8), 59(b), 60(1)(f), 81(b), 91(1)(f), 91(2)(a), 172(2)(b), 175(c), 177 (1)(b), 197 (1), 250(11).
[52] Constitution of Kenya (2010), Article 27(2).
[53] Constitution of Kenya (2010), Article 27(6).
[54] Constitution of Kenya (2010), Article 100.
[55] Constitution of Kenya (2010), Article 97(b and c).
[56] Constitution of Kenya (2010), Article 27(1).
