R.M v ATTORNEY GENERAL & 4 others [2010] eKLR are accorded privileges or advantages which are not accorded to persons of another such description.” 123. It is interesting that although both Sections 70 and 82 of the Constitution refer to the term sex as one of the criteria upon which discrimination is ousted, the term sex has not been defined in the Constitution. The question then, is, what did the legislature mean by the term sex? In our attempt to define the term sex, we have noted that the Concise Oxford English Dictionary 11th Edition defines sex as follows: “either of the two main categories (male and female) into which humans and most other living things are divided, on the basis of their reproductive functions, the fact of belonging to one of these categories, the group of all members of either sex.” 124. We have also noted that Black’s Law Dictionary 8th Edition defines the term sex as follows- “1. The sum of the peculiarities of structure and function, that distinguish a male from a female organism 2. sexual intercourse. 3 sexual relations.” The sum total of the above definitions is that the term sex simply refers to the categorization of persons into male and female on the basis of their biological differences as evidenced by their reproductive organs. 125. The question then is what is the status of an intersex person such as the petitioner who has ambiguous genitalia? Whether looked at from the religious point of view or from the scientific point of view, it is evident that the biological sexual constitution of an individual is acquired between the process of conception and birth. By the time of birth, the peculiarities are already fixed and the child either falls into the male or female category. In this regard we are persuaded by Corbett vs Corbett (supra) where Ormrod J. having had the benefit of the evidence of 5 highly qualified medical doctors, found it common ground between all the medical witnesses, that the biological sexual constitution of an individual is fixed at birth (at the latest) and cannot be changed either by the natural development of the organs of the opposite sex or by medical or surgical means. 126. We did not have the benefit of general local medical opinion regarding the determination of biological sexual constitution at birth, nor do we regard the single report produced in regard to the petitioner to be sufficient to provide appropriate expert opinion in this area. Nevertheless, in addition to Corbett vs Corbett (supra), we had the benefit of several other decisions from other jurisdictions. These included Bellinger vs Bellinger (supra), a decision from the United Kingdom; In the matter of the estate of Marshall G. Gardiner (No.85030) an appeal from the District Court to Court of Appeal of the State of Kansas. W vs W (supra), a decision from South Africa, Sentencia No.SU-337/99 (the Ramos Case) and Sentencia No.T-551/99 (the Cruz Case), decisions from the Columbian Constitutional Court. The evaluation of evidence relating to determination of biological sexual constitution in these cases was very illuminating. http://www.kenyalaw.org - Page 33/45