R.M v ATTORNEY GENERAL & 4 others [2010] eKLR petitioner considers himself a hermaphrodite then, the definition should be as defined in the case of W –vs- W (Physical Intersex) [2001] FLR 111. 79. It was further submitted that though counsel for the petitioner submitted that the petitioner was an “intersex” person, there is no specific prayer in the Amended Petition seeking such a classification to be made, save may be for prayer (g) which seeks a declaration that as an intersexual, the petitioner and intersexuals in Kenya have suffered, are suffering and continue to suffer lack of legal recognition and protection, under the Kenyan statutes. It was argued that the legal assignment of the human sex between male and female is founded in Divinity and the authorship of life by God. As such no human being has the power to determine their sex. 80. It was noted that the only medical evidence produced by the petitioner, being the Medical Report signed by Dr. Nyakeri S.B., suggests that the petitioner’s physiological findings reveal that he leans more towards male hermaphroditism. No additional medical evidence was adduced by the petitioner to assist this court in establishing the sex of the petitioner in accordance with the criteria set out in the case of Corbett –vs- Corbett [1970]2 WLR 1306, where Ormrod J. stated as follows:“In other words, the first three of the doctors’ criteria, ie chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.” 81. It was argued that since the only medical report submitted on the petitioner, shows that the petitioner leans towards male hermaphroditism, and the petitioner has also carried himself around as a male person with a male name “R”, he broadly fits into the chromosomal delineation. It was further submitted that the Corbett case (supra) also settled the issue of when a person’s sex is determined namely that it is determined at birth and that the same “cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means”. Therefore any subsequent operation cannot affect the sex of a person, unless there is a mistake made at birth as to sex. 82. On the issue of assigning gender, the court’s attention was drawn to the following passage from the case of Bellinger –vs- Bellinger (supra): “There is no difficulty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand of intersexual. In such cases classification of the individual as male or female is best done having regard to all the factors I have listed. If everybody has to be classified as either male or female, that is the best that can be done.” 83. Counsel submitted that the Bellinger case (supra) expanded on the three (3) criteria set out in the Corbett case, (supra) increasing the parameters to six (6) as follows:(i) (ii) (iii) (iv) Chromosomal factors Gonadal factors (ie presence or absence of testes or ovaries) Genital factors (including internal sex organs); Physiological factors; http://www.kenyalaw.org - Page 21/45