R.M v ATTORNEY GENERAL & 4 others [2010] eKLR decisions on behalf of persons incapable of making such decisions, such as minors and people with disabilities. 48. Reliance was placed on the Australian case of Re A (1993), Deakins Law Review, Vol. 9, Issue No. 2 at page 380, wherein the court in regard to a decision to determine gender and give consent to sex correction surgery, held that the decision to proceed with the proposed treatment did not fall within the ordinary scope of parental power to consent to medical treatment. The court proceeded to give consent to the surgery having given due consideration to expert evidence. 49. It was argued that there was need for appropriate legislation or rules and regulations that govern parental responsibility and corrective surgeries on intersexual children. The court was urged to apply the provisions of the Children’s Act 2001 with regard to the principle of the best interests of the child. An example was given of New South Wales where a Tribunal was formed guided by regulations to deal with such matters. The court was urged to grant prayers (h) (i) and (j) of the petition, as the current position of the situation in Kenya contravened Section 82 of the Constitution. Submissions of the 3rd Interested Party: 50. The 3rd interested party who was represented before us by Ms Angote also supported the petition. The gist of the 3rd interested party’s submissions was that the petitioner and other intersexuals, belong to a rare marginalized group who have suffered discrimination and stigmatization due to lack of legal recognition. Submissions similar to the ones made by the petitioner and 2nd interested party on the Constitution and the Birth and Death Registration Act were reiterated. The discrimination suffered by the petitioner and other intersex persons on matters such as housing and employment were of particular concern to the 3rd interested party. 51. It was submitted that the Kenya Government had failed to ensure statutory guarantee against discrimination, and that it must therefore ensure that intersexuals and or people of other status are protected. In this regard, it was noted that International Legal Instruments such as the Universal Declaration of Human Rights, the International Covenant on Social Cultural and Economic Rights, and the African (Banjul) Charter on Human and People’s Rights all included “other status” as a criterion upon which discrimination was outlawed. 52. The Court was urged to find that the State ought to ensure that statutory recognition is given to the rights of intersex persons in the same way the rights of male and female persons are recognized. It was submitted that to achieve this equality of status the law must recognize the “other status” not only in the Constitution but in other statutes as well. It was argued that since Kenya is a signatory to the various international Conventions which are set out above, Kenya should also enact laws that are in tandem with the said international instruments. 53. The court was referred to Articles 2, 7 and 8 of the Universal Declaration of Human Rights for the proposition that the petitioner and other intersex persons have a right to be accorded equal protection of the law. In the absence of such recognition, they should seek redress either in the local courts or internationally. It was maintained that there is no reason why the term “other status” should not be included in the laws of Kenya. Reference was made to the case of Edward Young vs Australia – 6th August 2000 Communications No.941/2000, CCPR/C/78/D/941/2000, for the proposition that the term “other status” was open ended enough to include intersexuals. 54. The court was urged to display the kind of judicial activism displayed by the Constitutional Court of Columbia in the Ramos Case (supra) and to find that:- http://www.kenyalaw.org - Page 15/45