R.M v ATTORNEY GENERAL & 4 others [2010] eKLR Submissions of the 3rd Amicus Curiae: 64. The 3rd amicus curiae is a statutory body having a mandate to promote and protect human rights in Kenya. It supported this petition with particular reference to prayers (d), (g) and (v). The 3rd amicus curiae was represented before us by Mr. Lando, who emphasized that in addition to the discrimination prohibited by the Constitution, Kenya was also a signatory to international treaties which prohibit discrimination on grounds of sex. In particular, the submissions addressed the following questions: (a) Who are intersex persons? Does Kenyan law make provision for them? (b) Does section 82 of the Constitution cover intersex persons in terms of protection from discrimination on the ground of sex? 65. It was contended that though there is no direct mention of the term intersex persons in any of the provisions of the various International Instrument cited, nonetheless, the Constitution still gives intersex a measure of protection under the non-discrimination clause in section 82. It was argued that though there has been no clear interpretation of the term “sex” since its introduction by an amendment to the Constitution in 1997, it is generally understood to mean male and female with no definition of the term with respect to intersex persons. It was submitted that the exclusion of intersex persons from the definition of “sex” is subjective and discriminatory of the petitioner herein. It was argued that the intersex persons, like any other person, should be accorded equal status under the law. It was contended that to say that sex means either normal “male” or “female” results in arbitrary and irrational exclusion, and discrimination against the intersex persons. The court was urged to adopt a more purposive interpretation of the term sex so as to include intersex within the definition of sex, and to find that any discrimination on the basis of intersexuality will thus qualify as discrimination on the basis of sex as recognized under the Constitution. 66. The court was implored to be alive to the plight of the petitioner herein and other intersex persons and to specifically make findings in the following terms:(i) That the non-discrimination clause in section 82 of the Constitution prohibiting discrimination on the basis of sex includes discrimination on the ground of intersexuality. (ii) That any discrimination on the basis of intersexuality is thus a violation of section 82 of the Constitution It was argued that such findings would ensure equal enjoyment of fundamental freedoms by intersex persons to guarantee and achieve equality. ARGUMENTS AGAINST THE PETITION: Submissions of the 1st, 2nd, 3rd, 4th & 5th Respondents: http://www.kenyalaw.org - Page 18/45