Background
The petitioner named S.C, was charged in Eldoret CMCR No. 1980 of 2019 with impersonation contrary to section 382 of Penal Code .While detained at Eldoret Women Prison, prison officers discovered she had male genitalia and subjected her to intrusive body searches. The trial court ordered a gender determination, leading to forced physical and medical examinations at Moi Teaching and Referral Hospital (MTRH) without her consent. She alleged violations of her constitutional rights by the police, prison officers, and medical staff.She sought declarations that her rights to privacy, dignity, equality, and freedom from cruel treatment had been violated; recognition as a transgender person; appropriate detention facilities; legislative reforms to the Prisons Act; damages; and costs.
The respondents opposed the petition, denying any violations and arguing that “transgender” lacks legal recognition in Kenya. They contended the searches and tests were lawful and necessary for security and classification in custody. The Office of Director of Public Prosecution( ODPP) further argued the petition had been overtaken by events as the underlying criminal case had been concluded.The interested parties, Amka Africa Justice Initiative and the Kenya Human Rights Commission, supported the petition, submitting that transgender persons were a marginalized group entitled to constitutional protection and that failure to provide suitable detention facilities exposes them to systemic abuse and discrimination. They relied on comparative jurisprudence emphasizing that gender is not limited to biological sex.Expert witnesses testified that gender identity is neurologically determined, distinct from sex, and that transgender persons face severe risks of abuse when detained contrary to their gender identity.
Issues for Court Determination
The issues framed were first, whether the petitioner was a transgender person; second whether the respondents violated her constitutional rights and; third what remedies, if any, were appropriate in the circumstance.
Court Determinations
The court when determining the issue of the violation of the rights of a transgender person held that under Article 27 of the Constitution ‘every person’ is considered equal before the law and therefore is deserving of protection and dignified treatment, regardless of sexual orientation or gender identity based on this Court determined that the petitioner was a transgender person within the meaning of constitutional protection of dignity, equality, and non-discrimination. Her rights under Articles 28 (dignity), 29 (freedom and security of the person), 31 (privacy), and 27 (equality and non-discrimination) were violated through unlawful and degrading searches, non-consensual medical examinations, and disclosure of medical information.
Given the fact that Kenya has taken special recognition of incorporating international law in its Constitution together with the supremacy of the Constitution having a whole Chapter 4 on the Bill of Rights, the State had a responsibility to implement both the constitutional imperatives and international law human rights standards to ensure that transgender individuals, the intersex, the LQBTQ could enjoy their rights. The Court thus proposed to the State to consider undertaking appropriate legislative measures to address the rights and protections of individuals within its borders, in line with Article 27(4) of the Constitution, which prohibited discrimination on any grounds, including race, sex, social origin, gender, birth, or other status. In this regard, the court proposed for the development and enactment of a Transgender Protection Rights Act as a potential mechanism to ensure equal protection and recognition for transgender persons or in the alternative, a declaration be and made that the Intersex Persons Bill 2024 be complemented to identify the rights of the transgender community in Kenya.
Thirdly, the court also held that the State, through the Attorney General and Commissioner General of Prisons, had a constitutional obligation under Articles 21 and 24 to provide facilities and policies safeguarding transgender detainees and to pursue legislative reforms to the Prisons Act. Fourthly, the court issued structural orders directing the State to initiate reforms and provide appropriate custodial arrangements for transgender persons.Finally, the petitioner was awarded 1 million in damages for violation of her constitutional rights.