After more than a decade of legal battles, humiliating airport interrogations and daily struggles with official documents, activist Audrey Mbugua Ithibu has secured a landmark High Court victory against the State over recognition of transgender persons in Kenya.
The High Court on Wednesday ruled that refusing to amend gender markers in official identification documents of transgender persons breaches the constitutional rights.
It ordered government agencies, including the Registrar of Births and Deaths, to begin receiving and considering applications for gender-marker changes within 60 days.
The court declared that delays, silence and refusal by State agencies to act on such requests amounted to violations of dignity, equality and fair administrative action.
“The silence and delay cannot defeat rights. Constitutional rights cannot be delayed over administrative convenience,” the court ruled in a petition filed by Mbugua and other transgender persons.
The judgment capped years of legal battles by Ms Mbugua, a transgender rights activist, whose fight with State institutions dates back more than 10 years.
For years, her academic records, national identity card, passport, birth certificate and driving licence carried gender markers identifying her as male despite her transition.
However, her other identification documents remained unchanged, continuing the legal and administrative conflict with State agencies.
She returned to court in 2020 alongside two other petitioners, whose names were withheld, challenging change of gender markers in national identification documents. They painted to court a life surrounded by suspicion and humiliation while trying to prove who they were.
The court heard that the contradictions repeatedly exposed her to suspicion, ridicule and discrimination while carrying out ordinary daily activities.
Ms Mbugua told the court they had been forced to explain themselves “at every juncture of their lives” because of conflicting documents.
The petitioners described painful encounters at airports, insurance offices, mobile money shops and other public spaces where their appearance did not match official identification cards.
Court papers showed that the inconsistencies subjected them to humiliation, mental anguish and suspicion from officials and service providers.
Through lawyer Conrad Ojiambo, the petitioners said M-Pesa transactions often turned into uncomfortable interrogations because agents questioned their identities after checking national identity cards.
They also told the court that obtaining insurance services became difficult because insurers treated them suspiciously once their documents raised questions about gender identity.
International travel was equally distressing. The advocate said the petitioners narrated being subjected to additional questioning and scrutiny at airports because of differences between their appearance and official documents.
“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,” one petitioner told the court.
The court agreed that forcing the petitioners to carry documents bearing gender markers inconsistent with their identity exposed them to continued harm and violated their dignity.
The court found that State agencies failed to provide lawful, efficient and fair administrative action despite repeated applications and demands made over several years.
The judgment specifically targeted the refusal by the Principal Registrar of Births and Deaths and the Director of the National Registration Bureau to amend birth certificates and identity documents.
The court quashed earlier decisions rejecting the applications and directed authorities to receive and consider requests for gender-marker changes on a case-by-case basis.
The court further ordered that pending legislation or regulations on the issue, applications should still be processed based on available evidence, including medical documentation.
The Principal Registrar of Births and Deaths responded that the law did not contain specific guidelines for changing gender particulars and sought advice from the Attorney-General and the Kenya Medical Practitioners and Dentists Board.
Further requests were later made by the petitioners, but State agencies continued delaying action while citing lack of regulations and awaiting medical guidance.
Lawyer Ojiambo argued that the State had hidden behind legislative gaps instead of protecting constitutional rights.
He told the court that the Births and Deaths Registration Act and the Registration of Persons Act lacked mechanisms for changing gender markers after initial registration.
“The respondents continue to hide behind such inadequacies instead of applying the law to promote and protect rights,” court papers filed by the petitioners stated.
The court judgment opens the door for broader recognition of gender-marker changes in civil registration system.
The court held that constitutional protections could not be suspended because government agencies lack regulations or policy frameworks.
The judge said the State had an obligation to protect the dignity and identity of all persons through fair administrative action.
The court directed relevant agencies to begin processing applications immediately as the government develops formal regulations governing gender-marker changes in official records.
