R.M v ATTORNEY GENERAL & 4 others [2010] eKLR
or female external characteristics that correspond to their chromosomes, but do not correspond
to their internal gonads.http://www.cirp.org/library/legal/USA/haas1/ - n22 Individuals who are
considered intersexed may also be born with matching male chromosomes, gonads, and genitals
but suffer childhood disease or accident that results in full or partial loss of their penis”.
109.
It is apparent from the above, that the distinction between a pseudo-hermaphrodite and a
true hermaphrodite as described above by Ormrod J. is of little significance in defining the term
intersex. In short, intersex is a term describing an abnormal condition of varying degrees with regard to
the sex constitution of a person. The term intersex and the term hermaphrodite may therefore be used
interchangeably. It appears however, that the current preference is for the term intersex rather than the
term hermaphrodite.
110.
Having thus defined the term intersex, the next question is whether the petitioner is an
intersex person. A medical report was produced which showed that the petitioner was seen by Dr.
Nyakeri S.B. for review on 31st October, 2007. The doctor’s opinion which was short and to the point is
as follows:
“STATUS LOCALIS:
Patient has well developed breast. On squeezing the nipples there is a discharge of watery
milk.
·
Pubic hair not well developed.
·
Penis undeveloped.
·
Urethra opening absent
·
Testis absent
��
Vagina opening shallow with fusion of labia
Conclusion
The patient has male Hermaphroditism.”
111.
This Doctor did not swear any affidavit, and the details of his examination are not clear. The
impression that one gets from a reading of the medical report is that the Doctor only carried out a visual
physical examination of the petitioner’s external genitalia. That is to say that the doctor’s report does not
provide adequate insight on the gonadal or chromosomal formation of the petitioner. Be that as it may,
the report is sufficient to confirm that the petitioner falls within the description of an intersex person as he
has ambiguous genitalia bearing physical characteristics of both male and female sex.
112.
Having established that the petitioner is an intersex person, the next question is whether
there is an identified class or body of persons known as intersex in this country whose interests the
petitioner can represent. In other words, whether there are other persons other than the petitioner falling
within the category of intersex persons as described above. It was for the petitioner and other parties
who were supporting the petition to establish the presence of this body of persons. That could only be
done by way of medical evidence and statistical data. Unfortunately, no such concrete evidence was laid
before the court. This case is therefore distinguishable from the Il Chamus Case, (supra) where the four
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