R.M v ATTORNEY GENERAL & 4 others [2010] eKLR Wyoming Department of Corrections 2004 WL 307421 was cited. In that case a District Judge Clarence A. Brimmer ruled that state officials violated the 14th Amendment due process rights of an intersex Miki Ann Dimarco when she was confined for 14 months in the security wing of the prison, totally segregated from the general population of inmates after it was discovered that she had male organs. 44. It was argued that the petitioner’s solitary confinement is a violation of his rights under Article 2(3) of the International Covenant on Civil and Political Rights. The court was urged to use the spirit of the Colombian Constitutional Court in the Ramos Case (supra), where the court acknowledged that in the near future it would be necessary and unavoidable for certain policy adjustments to regulate, in the best possible way, the challenges posed to our pluralistic society’s intersexual status. Counsel submitted that the drafters of the Constitution might not have foreseen cases of intersex persons. However, as the situation was actually with us, the interpretation of sex should include intersex. Submissions of the 2nd Interested Party: 45. The 2nd Interested Party supported the petition with regard to prayer (h) of the amended petition, which seeks a declaration that the petitioner and other intersexuals have been left out on issues of marriage and adoption and in the process of deciding the gender or sex they belong to upon attaining the age of majority. The 2nd interested party was represented before us by Ms. Lillian Njeru. It was submitted that due to the lacuna in the law, intersexuals are discriminated against while others undergo corrective surgeries against their will. It was argued that the declarations sought by the petitioner, if granted, shall have far reaching ramifications for other intersex individuals now and in the days to come. 46. We do not find it necessary to repeat the 2nd interested party’s submissions which have already been captured by the petitioner and the 1st interested party. However we take the liberty to reproduce the following extract from the 2nd interested party’s written submissions which neatly sums up its submissions. “The term sex as used in the Kenyan laws including the Constitution is not legally defined and therefore, resort would be to standard ‘dictionary’ definitions, most of which do not take cognizance of atypical situations of intersex who do not comply with the contemporary sex differentiation of being male or female………It is our submission that the fact that an intersex does not fall within the definite criterion as being distinctly male or female, should not negate his right as a human being in whom rights and freedoms are inherent. The fact that the Births and Deaths Registration Act defines the limits of sex in restricting the same to male/female contravenes the Constitutional rights of an intersex. Further, given that the law in Kenya does not provide for a definition of sex, it is our submission that the Constitution should not be strictly interpreted to mean that discrimination on the ground of sex does not include an intersex because of the lack of a definition; rather, we pray that the Court interprets the term sex liberally as the condition of being an intersex relates to the question of gender identity to which discrimination on the ground of sex relates. It is therefore in the interests of justice that the court upholds the rights of intersexual persons by declaring unconstitutional laws that vindicate discrimination of intersex on the ground of them being intersexed. 47. On the issues of Children’s rights and parental consent, the 2nd interested party argued that there was need for rules and regulations and laws to govern issues of parental responsibility and corrective surgeries on intersexual children. The court was urged to address the issue as to whether parental discretion was absolute. The court was challenged to take the opportunity to develop and entrench the common law doctrine of parens patriae under whichcourts have an inherent right to make http://www.kenyalaw.org - Page 14/45