R.M v ATTORNEY GENERAL & 4 others [2010] eKLR intersex as “a person who because of a genetic condition was born with reproductive organs or sex chromosomes that are not exclusively male or female”. 16. Our attention was drawn to the medical report prepared by Dr. Nyakeri a Medical Officer at Kamiti Prison. This report showed that the petitioner had undeveloped male and female sexual organs, and had male hermaphroditism. It was submitted that in terms of the above referred to definitions, the petitioner was an intersex, the term hermaphrodite being no longer in use. It was argued that as an intersex person, the petitioner has no legal recognition before the law. This is evident in the Births and Deaths Registration Act, Cap 149 Laws of Kenyawhichmakes no mention or reference to intersex. As a result of such omission, the petitioner (and others like him), are not treated equally before the law. 17. An issue was taken with Section 7 of the Births and Deaths Registration Act, which requires every birth to be registered and “prescribed particulars” to be maintained, and Section 2 of the same Act which defines “prescribed particulars” to mean: “(a) as to any birth, the name, sex, date and place of birth, and the names, occupation and nationality of the parents; residence, (b) as to any death, the name, age, sex, residence, occupation, and nationality of the deceased, and the date, place and cause of death ---” 18. It was pointed out that in line with the above definition, the forms provided in the schedule in the Births and Deaths Registration Act, made provision for only two checkboxes for “male” or “female”. Since the particulars in the forms are the ones that facilitate the issuance of a Birth Certificate, an Applicant must fill either box. Leaving both boxes blank, would result in an Applicant not being issued with the Birth Certificate, a document which is viewed by the petitioner as a very crucial document for his identity. It was argued that because Form B1 makes no provision for intersex persons, the petitioner and others like him lack legal recognition and statutory protection. It was submitted that there is therefore no equality before the law for intersex persons who are neither male nor female, men or women, boys or girls, him or her. 19. Taking the argument on lack of legal recognition, further it was contended that the issuance of a Birth Certificate to any person under the Births and Deaths Registration Act, means that such a person is recognized and acknowledged as being in existence Such a person then, becomes entitled to a number of human rights. Such rights include the following:· Access to healthcare · Access to immunization (this is part of healthcare) · Enrolment in school at the right age · labour Enforcement of laws relating to minimum age for employment, assisting efforts to prevent child · Effectively countering forced marriage of young girls before they are legally eligible, without proof of marriage · Protection against under-age military service or conscription http://www.kenyalaw.org - Page 8/45