R.M v ATTORNEY GENERAL & 4 others [2010] eKLR the fact that the issue of gender definition for an intersex person unlike a transsexual or a homosexual, is a matter of necessity and not choice. Tolerance and acceptance in this area will come with dissemination of appropriate information leading to enhancement of knowledge and better understanding of the condition. The challenge is with the government and the civil society to educate the masses. Indeed, this is what has happened in cases of mentally challenged persons. Society has not only come to appreciate their situation but also the need to have special schools for affected children. No doubt the society has come a long way from the days when such mentally challenged children were killed or abandoned due to cultural biases and beliefs. Such a development and change of attitude can only come gradually with time. 146. A look at similar developments in the United Kingdom shows that the Kenyan situation is not unique. For example, the struggles that transsexuals and intersex persons have had to go through in the United Kingdom to attain legal recognition of their gender reassignment status and right to marry, has spunned over a period of many years, during which period the struggle moved from the domestic courts to the European Court of Justice. This struggle is recapitulated in the case of Christine Goodwin vs the United Kingdom Application No.28957/95, delivered by the European Court of Justice on 11th July, 2002. It is noteworthy that in Rees vs the United Kingdom decided in 1986, Cossey vs the United Kingdom decided in 1990,and Sheffield & Hosham vs the United Kingdom decided in 1998, the European Court of Justice was hesitant to enforce the rights of the transsexuals holding that it was not shown that the failure by the United Kingdom government to accord legal recognition of the change in gender, had given rise in the applicants’ own case histories to detriment of sufficient seriousness to override the United Kingdom’s margin of appreciation. 147. In the case of Christine Goodwin vs the United Kingdom decided in the year 2002,the European Court of Justice moved from its previous position and held that the United Kingdom government could no longer claim that the matter fell within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. The European Court of Justice found that there were no significant factors of public interest to weigh against the interest of the transsexual applicant in obtaining legal recognition of her gender re-assignment. It reached the conclusion that the fair balance that is inherent in the Convention tilted decisively in favour of the applicant, and ruled that there was failure to respect her right to private life in breach of Article 8 of the Convention. This decision led to the passing of the Gender Recognition Act 2004 in the United Kingdom. This Act allowed transsexuals to obtain new birth certificates affording them full recognition of their acquired status for all purposes. 148. The Kenyan society is predominantly a traditional African society in terms of social, moral and religious values. We have not reached the stage where such values involving matters of sexuality can be rationalized or compromised through science. In any case, rationalization of such values can only be done through deliberate action on the part of the Legislature taking into account the prevailing circumstances and the need for such legislation. Violation of fundamental rights during the hearing of Criminal Case No.1146 of 2005 at Kitui Court 149. It is not disputed that the petitioner was arrested, tried and convicted for the offence of robbery with violence, contrary to Section 296(2) of the Penal Code, and that he is currently a condemned prisoner at Kamiti Maximum Prison. The petitioner has maintained before us that his fundamental rights were violated during the criminal trial. Nevertheless, during the pendency of the criminal trial, the petitioner did not move the court under Section 84(3) of the Constitution, for reference to the High Court for determination of the question regarding the alleged violation of his rights. The http://www.kenyalaw.org - Page 38/45