R.M v ATTORNEY GENERAL & 4 others [2010] eKLR before the law such as Articles 6 and 7 of the Universal Declaration of Human Rights. 133. An argument was raised that inter sexuals should be brought within the category of “other status” included in Article 2 of the Universal Declaration of Human Rights and Article 26 of the International Covenant of Civil and Political Rights. Such inclusion, it was argued, would accord intersex persons a specific right against discrimination. We find that the invocation of the provisions of the international instruments to provide for another category of “other status” is not necessary because intersex persons are adequately provided for within the Kenyan Constitution as per the ordinary and natural meaning of the term sex. Moreover, issues of sexuality are issues which cannot be divorced from the socio-cultural attitudes and norms of a particular society. To include intersex in the category of “other status” would be contrary to the specific intention of the Legislature in Kenya. It would also result in recognition of a third category of gender which our society may not be ready for at this point in time. We therefore reject the argument that we should adopt the criterion of “other status” included in the international instruments. Therefore the petitioner as an intersex person is adequately covered by the law and has suffered no discrimination or lack of legal recognition. Has the petitioner suffered discrimination or been disadvantaged in Education, Employment, Housing or Democratic Right due to his status? 134. Currently in Kenya, one needs a birth certificate to be registered in a school. For one above the age of 18 years, a birth certificate together with a national identity card, are necessary to enable the person to sit for national examinations. In the case of the petitioner, he was born in the year 1974. This was before the mandatory requirement for production of a birth certificate as a condition for enrolment in school. The petitioner’s mother deponed that the petitioner was born at home. Neither the petitioner’s mother nor the petitioner deponed to any efforts to register the petitioner’s birth or obtain a birth certificate. That however, did not deter the petitioner from going to school. 135. The mother to the petitioner, the petitioner’s grandfather and grandmother all deponed that the petitioner started going to Primary School but abandoned school at Class 3. The reason for the petitioner abandoning school has been given by his mother as the petitioner’s allegation that he could not see anything written on the blackboard. The petitioner apparently refused to go to school despite efforts by the family convincing him to do so. We find that the petitioner did not fail to go to school because he was disadvantaged due to his intersex status as he alleged. The petitioner’s effort in seeking employment at a later stage, were frustrated. This was not due to his intersex status but simply because the petitioner did not have any educational background which would have enhanced his bargaining power in the labour market. 136. In the result, we reject the contention that the petitioner was disadvantaged in education, employment or housing due to his intersex status. As regards the petitioner’s right to vote, this right was available to the petitioner provided he obtained an appropriate national identity card for identification purposes during the voting exercise. It is evident that the petitioner did not make any efforts to obtain a national identity card, nor did he make any efforts to obtain a voter’s card. We find that the petitioner was never denied his right to vote. Rather, it is the petitioner who disenfranchised himself by deliberately failing to meet the prerequisites for voting. Is the petitioner as an intersex person discriminated against in Marriage? 137. It was argued that the petitioner as an intersex person was discriminated against in the area of marriage. This was because the Kenyan Law only recognized a marriage between a male and a female, and the petitioner being allegedly neither male nor female, was not in a position to enter into a http://www.kenyalaw.org - Page 35/45