R.M v ATTORNEY GENERAL & 4 others [2010] eKLR Issues concerning the petitioner’s right to adopt a child were raised before us as general issues. There being no evidence that the petitioner has adopted or intends to adopt a child, we do not find it appropriate to address the issue of adoption. Indeed, such an application would have to be dealt with under the Children’s Act taking into account all the circumstances of the particular case. Petitioner’s right to determine gender or define sexual identity. 142. As to the petitioner’s right to determine his gender or define his sexual identity, the petitioner is an adult and does not require the consent of any person to define his sexual identity provided that this is done within the confines of the law. The petitioner was assigned the male gender by his mother. He has lived as a man all his life. There is no indication that he would want to change from that gender. Corrective surgery is an option available to the petitioner for purposes of clearly defining his sexual identity. We do realize however, that such surgery would be a delicate and expensive affair. The petitioner’s condition is not any more precarious or urgent than cancer patients or HIV/Aids patients. The government is limited in providing medical facilities and resources due to the socioeconomic conditions. Thus, the government cannot be blamed for failing to provide necessary facilities to enable the petitioner have corrective surgery as there is no justification as to why such gender corrective surgery should be given priority in accessing funds. Secondly, it has not been established that there are local medical experts who can provide the necessary medical expertise for performing such gender corrective surgery. 143. The 2nd interested party was particularly concerned with the issue of parental responsibility with regard to corrective surgery or assigning gender. i.e. whether parental responsibility should be absolute in assigning a gender to a child. We find this question to be of mere academic interest in this case, considering that the petitioner is well over the age of majority, and that there was no evidence that the issue of corrective surgery was ever considered while he was a minor. The question being raised is no doubt a pertinent issue which we would have had to address if the petitioner before us was an intersexual “child” in respect of whom such issues had to be determined. In our view although the 2nd interested party raised valid legal issues of concern, they boarded the wrong train which could not take them to their destination in so far as the answers to their questions are concerned. The petitioner is past the age of majority, he is capable of making his own decision with regard to gender assignment. He is not a child in respect of whom the questions posed by the 2nd interested party can apply. 144. It would serve no useful purpose to get into a tirade of suppositions as to what ought to have happened to the petitioner when he was a minor. Nor can we consider the plight of intersex children generally because as we have stated the petitioner has no locus standi to bring this petition on behalf of other intersexuals. Moreover, opinion is varied as to the need and efficacy of reconstructive surgery on infants or minor children below the age of puberty. Each case would therefore have to be considered on its own peculiar circumstances and no general rule can be laid down. It is true that there is no legislation regarding responsibility in assigning gender or corrective surgery involving a minor. The court cannot however address this issue as it is not properly before it. Social Stigma 145. The social stigma suffered by the petitioner is something of concern. However in our view the problem of social stigma is not a legal problem. What needs to be done is for parents and those who have such special conditions to be open about their situation, and for the society to be educated to respect the dignity of such people as human beings. As a court, we can issue orders and make declarations, but this will be of little effect considering that the stigma is connected with the public perception which is based on the public’s limited knowledge of intersex status. Few seem to appreciate http://www.kenyalaw.org - Page 37/45