Win for transgenders in Kenya as Court allows gender marker changes on official documents

The High Court has issued a landmark ruling declaring that Kenyan law does not expressly prohibit the alteration of sex or gender markers on official documents, in a decision expected to shape future policy and constitutional interpretation on identity rights.

In a judgment delivered on Tuesday, Justice Bahati Mwamuye found that the refusal by state agencies to amend the documents of transgender activist Audrey Mbugua Ithibu violated constitutional guarantees on equality, dignity, privacy, freedom of expression and fair administrative action.

The court held that the denial to alter birth certificates, national identity cards and passports exposed the petitioners to harassment, forced disclosure of private information and difficulties in accessing essential services.

Justice Mwamuye dismissed a preliminary objection raised by the State, ruling that constitutional petitions should not be defeated on procedural technicalities where alleged rights violations have been clearly pleaded and demonstrated.

In the judgment, the court emphasized that constitutional rights cannot be suspended due to legislative gaps or administrative silence, noting that courts have a duty to enforce rights where violations have been established.

The judge clarified that the court was not creating new law or directing Parliament to enact legislation, but was instead interpreting existing laws in line with the Constitution and the Bill of Rights.

The court found that both the Births and Deaths Registration Act and the Registration of Persons Act do not expressly bar applications seeking the alteration of sex or gender markers.

As a result, the court quashed previous decisions by state agencies rejecting the petitioners’ requests and issued orders compelling the Principal Registrar, the National Registration Bureau and the Passport Office to receive, consider and determine the applications within 60 days.

Pending the establishment of a clear legislative or policy framework, the court directed that future applications be handled on a case-by-case basis in a fair, reasonable and non-discriminatory manner, while taking into account relevant medical, legal and administrative material presented by applicants.

The ruling is expected to reignite debate on gender identity, constitutional rights and administrative reforms in Kenya, while setting a significant precedent on how state institutions handle applications relating to identity documents.