R.M v ATTORNEY GENERAL & 4 others [2010] eKLR “Intersexed people constitute a minority entitled to protection by the state against discrimination.” Reference was also made to Di Marco vs Wyoming Department of Corrections (Supra), and the court asked to earnestly urge the Prison Authorities in the country to push for immediate reforms of their facilities to cater for the likes of the petitioner and other intersex persons. It was contended that such a finding would help intersex persons to fight the stigma, segregation, discrimination and neglect around the status of intersex persons. Submissions of the 4th Interested Party: 55. The 4th interested party who was represented during the hearing of the petition by Ms Wambua, also supported the amended petition. The submissions of the 4th interested party examined the nature of intersexuality with particular focus on the implications for gender identity, taking into account scientific perspectives, and Christian Theology. It was argued that intersex persons were human beings, who are in the class of people born with disabilities like the blind, deaf, and lame. However, because of existing cultural definition of sex as male or female, they were discriminated against. It was pointed out that intersex persons were born as such because of biological processes, not because of sin. 56. Referring to the Bible, it was contended that there was no strict or rigid definition of gender in the Bible, as male or female mentioned in the book of Genesis, was only meant to facilitate relationships. It was argued that in the Bible eunuchs who were treated as neither male nor female were recognized. It was submitted that because of the legal vacuum in Kenya, many intersex persons do not enjoy a dignified status, ending up as objects of ridicule, fear or pity. This court was therefore called upon to issue protection orders and writs that will heal relations between biological sex, gender identity, and cultural influences in Kenya, so as to safeguard the constitutional rights of intersex persons. The court was challenged to stand up to the task of deconstructing social structures that discriminate and ridicule intersex persons leading to serious human rights violations. 57. It was argued that God created man with the deep need to express his (man’s) humanity most fully in relationships. God made the two genders with a view to drawing the two sexes towards human intimacy and for procreation. Christians in society are called upon to welcome the marginalized and the alien and to “do justice, love, mercy and walk humbly with God”. It was submitted that intersex and transgender persons are among the marginalized and that the body of Christ should indeed embrace and nurture them to enable them live a flourishing and full life within the bounds of their situation, like the eunuchs did. Finally, the court was urged to recognize by declaration the intersex gender, and thus eliminate the discrimination that is faced by this minority group of society so as to give them an identity and enable them to enjoy equal rights in society and before the law. Submissions of the 1st & 2nd Amicus Curiae: 58. The 1st and 2nd amicus curiae who supported the petition were represented before us by Mr. Gatuguta. Submissions were made pointing out that the petition raised issues on the violation of individual rights of the petitioner, under Sections 74, 77 and 82 of the Constitution. Sections 28, 30, 31 and 38 of The Prisons Act, and Sections 2(b) and 7 of the Births and Deaths Registration Act were identified as denying or violating the petitioner’s rights. It was argued that the rights of intersex children in Kenya were not safeguarded. Consequently intersex children were subjected to surgery orgenital mutilation; left to grow with no medical attention or psychological counseling; ostracized and/or isolated. http://www.kenyalaw.org - Page 16/45