R.M v ATTORNEY GENERAL & 4 others [2010] eKLR (v) (vi) etc) Hormonal factors; and Secondary sexual characteristics (such as distribution of hair, breast development, physique 84. It was submitted that because the petitioner has not placed any evidence before this court on all the sex factors to be considered in determining whether he is male or female, the petitioner’s petition ought to be dismissed. The court was urged to dismiss the petition on the following grounds: (i) That the petitioner’s proceedings were brought in bad faith and were a mere afterthought. This is because the petitioner never moved the subordinate court either on the issue of violation of his fundamental rights, or his gender designation, prior to his incarceration or during the pendency of his trial. Nor did the petitioner invoke Legal Notice No.6 of 2006. (ii) That the petition is an attempt by the petitioner to flee from criminal liability. This is because the petitioner never raised any objection to his being designated as “male”, nor has he placed any evidence before this Court to show that he ever protested at any stage of his life at being identified as a male. The petitioner only now appears to do so to escape from his conviction. (iii) That the petitioner’s claims are extraneous claims. There is no proof or record that the petitioner has ever sought any surgical interventions to his “intersexual condition”, or that the condition is a thorny and foremost issue in his life. The petitioner simply seeks to appeal to the emotional concerns tied to his condition as opposed to genuine constitutional issues. (iv) That the petition should be dismissed on grounds of public policy. This is because a finding in favour of the petitioner would open a floodgate of litigation from all manner of claimants with inconsequential deficiencies of whatever nature, in order to flee from criminal liability. Moreover, the motive behind the petitioner’s proceedings is clouded by the positions expressed by the 1st to 4th interested parties. The 2nd amicus curie has also introduced oblique activism that lacks sufficient loci in the claim. (v)That the petition should be dismissed due to lack of conclusive medical proof of intersex. In the absence of an appropriate medical report, giving conclusive proof of the petitioner’s internal organs, there is no way this court can tell whether the petitioner possesses ovaries, fallopian tubes or uterus, or whether he has tissues that are commensurate with both the masculine and feminine gender, so as to qualify as a “middle-of-the’ road’ 3rd gender, or whether his organs are predominantly of the male gender or female gender. http://www.kenyalaw.org - Page 22/45