Transgender activist Audrey Mbugua Ithibu and two others are still fighting the government over its refusal to allow them to remove the male designation from their national registration documents.
Two years ago, Mx Mbugua won a legal battle against the Kenya National Examinations Council (Knec) when the Court of Appeal upheld a decision compelling the State agency to change the gender identity on their academic certificates to reflect their true identity.
In September 2019, Knec, complying with the court order, altered Mx Mbugua’s gender marker from male (m) to a variable character denoted as one (1).
But other identification documents, such as the national identity card, passport, driving licence and birth certificate still designate Mx Mbugua as male.
With two other transgender people (names withheld), they say the government has refused to amend their birth certificates and national identity cards to reflect their true gender identities.
This has subjected them to discrimination, suspicion, mistreatment and humiliation because of the contradiction caused by the mismatch between their names and the gender marks on documents, they argue.
In court papers in a case coming up for a hearing at the Milimani High Court Tuesday, they say they have tried to resolve this issue over the years without success.
The last push was in March 2019 when the principal registrar of births and deaths told them that advice was being sought from the Kenya Medical Practitioners and Dentists Council.
Through lawyer Conrad Ojiambo, they want the court to order the State to recognise and protect their identity as transgender.
In the court papers, they narrate their painful experiences, locally and internationally, because their gender identity or gender expression differs from what they were assigned at birth.
They cite the difficulties transgender people encounter when making transactions at M-Pesa agencies, when buying insurance, and when passing through airports.
"I am a human being, I am not my reproductive organs and there is no possible way these organs can be used to identify me," says one petitioner.
Lawyer Ojiambo says his three clients are required to explain their true identity at every juncture of their lives, exposing them to ridicule, untold suffering and mental torture.
The lawyer also wants the court to compel the Attorney-General, the principal registrar of births and deaths and the director of national registration bureau to amend the trio's birth certificates and national identity cards so as to reflect their accurate gender identity.
Declared unconstitutional
The activists want provisions of the Births and Deaths Registration Act and the Registration of Persons Act requiring the listing of Kenyans as either male or female depending only on their dominant sex to be declared unconstitutional.
"The two Acts are inadequate to the extent that they do not provide for change of names or gender marks after the initial registrations. The Respondents continue to hide behind such inadequacies, instead of applying the law to promote and protect my rights as a transgender person," they argue in court papers.
"Unless the said Acts are declared unconstitutional to the extent that they don’t provide for protection and identification as a transgender person, the Respondents will continue hiding under the same so as to perpetuate violations of (their) rights, abuse and suffering."
Lawyer Ojiambo said the Attorney-General had advised the registrar of births and deaths that such cases should be subjected to a medical opinion before a decision is made.
Other than the registrar saying it was awaiting the opinion of the Kenya Medical Practitioners and Dentists Council, Mr Ojiambo says, the registration bureau remained unresponsive on the matter despite numerous requests and demands.
