R.M v ATTORNEY GENERAL & 4 others [2010] eKLR right to equal pay for equal work intersex persons are disadvantaged in the job market. It was submitted that because of lack of legal recognition, the attendant social stigma and economic incapacity caused by unemployment, intersex persons are more prone to crime than those who are either male or female. It was contended that because there is no legal recognition for intersex persons in this country, such persons are hidden away by their families or resort to hiding for fear of either being stigmatized or molested. 33. With regard to corrective surgery, it was submitted that though many intersex children are today being subjected to corrective surgery, the petitioner’s family was too poor to afford the surgery. A question was posed as to whose responsibility it is to assign gender to an intersex child, whether it was the child, the parent, the doctor or the court, and whether such surgery would be in the best interest of the child, or would infringe upon the intersexual child’s privacy. In trying to find answers to these questions, reliance was placed on the case of Gillick –vs- West Norfolk and Wisbech Area Health Authority & Another [1985]3 ALL ER 402 in which it was held that in certain specified circumstances, a minor can give consent for corrective surgery or other medical treatment without obtaining parental consent. 34. Counsel for the petitioner concluded the submissions by a quotation from the Constitutional Court of Colombia, in two decisions namely Sentensia No.54-337/99 (The Ramos Case) and Sentensia T551/99 (The Cruz Case) in which the Colombian court concluded both decisions with the same emphatic exhortation:“Intersexed people question our capacity for tolerance and constitute a challenge to the acceptance of difference. Public authorities, the medical community and the citizenry at large have the duty to open up a space for these people who have until now been silenced. […] We all have to listen to them, and not only to learn how to live with them, but also to learn from them.” The Court was urged to find that the petitioner has made out a case for the declarations sought and to proceed to make the declarations. Submissions 1st Interested Party: 35. During the hearing of the petition, the 1st interested party, who supported the petition, was represented by Ms. Wakonyo. The arguments made were along the same lines as those made by the petitioner. For the sake of brevity, we shall not repeat what has already been covered in the petitioner’s submissions. Adopting the definition of an intersex, contained in the eDictionary Wikipedia, Ms Wakonyo submitted that the term intersex is applied to human beings whose biological sex cannot be classified as either male or female. The petitioner being a person with both male and female characteristics fell within that definition. 36. It was noted that The Prisons Act (Cap. 90) was silent on how intersex inmates should be treated. This omission has resulted in inhuman and discriminatory treatment for intersex persons in the prisons. It was also contended that there was contravention of section 82(1), (3) and (8) of the Constitution which prohibits the existence of any law whose provisions are discriminatory. It was contended that The Prisons Act not having made provision for intersex persons was discriminatory. Reliance was placed on the case of Nakusa –vs- Tororei & 2 Others –Election Petition No. 4 of 2004, where the court held that“ ………in interpreting the Constitution the court must uphold and give effect to the letter and spirit of the Constitution always ensuring that the interpretation is in tandem with aspirations of http://www.kenyalaw.org - Page 12/45