R.M v ATTORNEY GENERAL & 4 others [2010] eKLR 127. It is common knowledge that under normal circumstances the sex of an individual manifests itself in a clear way at birth, through the physiological appearance so that one is able to tell at once whether the individual falls within the male or female category. The cases referred to above, brought to light those unusual situations where the sex of the individual may not be so clear cut at birth, particularly where the individual exhibits ambiguous genitalia, as was the case with the petitioner herein. In other situations the physiological appearance may end up being deceptive in the sense that subsequent biological factors may turn out to be incongruent with the physiological appearance. 128. We are satisfied that in the case of the petitioner his ambiguous genitalia did not negate the fact that his biological sexual constitution had already been fixed at birth. In requesting for the particulars of the sex of the petitioner as either male or female, the Births and Deaths Registration Act did not therefore exclude the petitioner as an intersex person, because the petitioner in fact falls within one of the two defined categories. The challenge was to determine at birth which side of the divide the petitioner fell particularly, for purposes of registration of the birth i.e. whether male or female. 129. It may have been difficult to conclusively determine the petitioner’s gender at that early stage. The best that could be done at infancy was to adopt the category whose external genitalia and physiological features appeared more dominant at that stage. Indeed, this is what the petitioner’s mother appeared to have done by naming him “R.M” and presenting him as a male child. Therefore, we are satisfied that notwithstanding the petitoner’s condition as an intersex person, he still fell within the two categories of male and female identified in the schedule to the Births and Deaths Registration Act. His birth could have been registered under that Act. Nevertheless, the petitioner has not satisfied us that any efforts were made to have his birth registered under that Act. The petitioner’s complaint that he lacks legal recognition because of his inability to have his birth registered has not been substantiated and must therefore be rejected. 130. It was argued that the term sex in Section 70 and 82 of the Constitution should be interpreted widely, to include intersex persons, as this would provide equal protection of the law to intersex persons. We are weary of this argument for two reasons: Firstly, in our view, the term sex as used in Sections 70 and 82 of the Constitution encompasses the two categories of male and female gender only. To interpret the term sex as including intersex would be akin to introducing intersex as a third category of gender in addition to male and female. As we have endeavored to demonstrate above, an intersex person falls within one of the two categories of male and female gender included in the term sex. To introduce intersex as a third category of gender would be a fallacy. 131. Secondly, we are not persuaded that as a court it is within our mandate to so expand the meaning of the term sex when the legislature in Kenya has not done so. We are aware that South Africa has specifically provided in their Promotion of Equality and Prevention of Unfair Discrimination Act No.4 of 2000, for the word sex to include intersex. We appreciate that the circumstances of South Africa with regard to the experience of discrimination, is unique. The fact that South Africa has already passed a law recognizing gender reassignment through the Alteration of Sex Description and Sex Status Act 2003 also puts it at a different level from Kenya. Worthy of note, is the fact that the inclusion of intersex in the definition of the term “sex” in South Africa has specifically been provided for through legislation. 132. We believe that the legislature in Kenya would, like South Africa, have provided specifically for such an interpretation of the term sex, either in a statute or the Constitution, if the legislature was of the view that the circumstances of Kenya so warrants it. We are convinced that the term sex in Sections 70 and 82 of the Constitution needs no interpretation beyond its ordinary and natural meaning which is inclusive of all persons including intersex persons within the broad categories of male and female. This is consistent with the international instruments giving everyone a right to legal recognition and equality http://www.kenyalaw.org - Page 34/45